Republic of the Philippines SUPREME COURT Manila THIRD DIVISION G.R. Nos.

174813-15 March 17, 2009 NILO HIPOS, SR. REPRESENTING DARRYL HIPOS, BENJAMIN CORSIO REPRESENTING JAYCEE CORSIO, and ERLINDA VILLARUEL REPRESENTING ARTHUR VILLARUEL, Petitioners, vs. HONORABLE RTC JUDGE TEODORO A. BAY, Presiding Judge, RTC, Hall of Justice, Quezon City, Branch 86, Respondent. DECISION CHICO-NAZARIO, J.: This is a Petition for Mandamus under Rule 65 of the Rules of Court seeking a reversal of the Order dated 2 October 2006 of respondent Judge Teodoro A. Bay of Branch 86 of the Regional Trial Court (RTC) of Quezon City, which denied the Motion to Withdraw Informations of the Office of the City Prosecutor of Quezon City. The facts of the case are as follows. On 15 December 2003, two Informations for the crime of rape and one Information for the crime of acts of lasciviousness were filed against petitioners Darryl Hipos, Jaycee Corsio, Arthur Villaruel and two others before Branch 86 of the Regional Trial Court of Quezon City, acting as a Family Court, presided by respondent Judge Bay. The cases were docketed as Criminal Cases No. Q-03-123284, No. Q-03-123285 and No. Q-03-123286. The Informations were signed by Assistant City Prosecutor Ronald C. Torralba. 1 On 23 February 2004, private complainants AAA and BBB filed a Motion for Reinvestigation asking Judge Bay to order the City Prosecutor of Quezon City to study if the proper Informations had been filed against petitioners and their co-accused. Judge Bay granted the Motion and ordered a reinvestigation of the cases. On 19 May 2004, petitioners filed their Joint Memorandum to Dismiss the Case[s] before the City Prosecutor. They claimed that there was no probable cause to hold them liable for the crimes charged. On 10 August 2004, the Office of the City Prosecutor issued a Resolution on the reinvestigation affirming the Informations filed against petitioners and their co-accused in Criminal Cases No. Q-03-123284-86. The Resolution was signed by Assistant City Prosecutor Raniel S. Cruz and approved by City Prosecutor Claro A. Arellano. On 3 March 2006, 2nd Assistant City Prosecutor Lamberto C. de Vera, treating the Joint Memorandum to Dismiss the Case as an appeal of the 10 August 2004 Resolution, reversed the Resolution dated 10 August 2004, holding that there was lack of probable cause. On the same date, the City Prosecutor filed a Motion to Withdraw Informations before Judge Bay. On 2 October 2006, Judge Bay denied the Motion to Withdraw Informations in an Order of even date. Without moving for a reconsideration of the above assailed Order, petitioners filed the present Petition for Mandamus, bringing forth this lone issue for our consideration: CAN THE HON. SUPREME COURT COMPEL RESPONDENT JUDGE BAY TO DISMISS THE CASE THROUGH A WRIT OF MANDAMUS BY VIRTUE OF THE RESOLUTION OF THE OFFICE OF THE CITY PROSECUTOR OF QUEZON CITY FINDING NO PROBABLE CAUSE AGAINST THE ACCUSED AND SUBSEQUENTLY FILING A MOTION TO 2 WITHDRAW INFORMATION?

MANDAMUS is an extraordinary writ commanding a tribunal, corporation, board, officer or person, immediately or at some other specified time, to do the act required to be done, when the respondent unlawfully neglects the performance of an act which the law specifically enjoins as a duty resulting from an office, trust, or station; or when the respondent excludes another from the use and enjoyment of a right or office to which the latter is entitled, and there is no other plain, speedy and adequate remedy in the ordinary 3 course of law. As an extraordinary writ, the remedy of mandamus lies only to compel an officer to perform a ministerial duty, not a discretionary one; mandamus will not issue to control the exercise of discretion by a public officer where the law imposes upon him the duty to exercise his judgment in reference to any manner in which he is required to act, because it is his judgment that is to be exercised and not that of 4 the court. In the case at bar, the act which petitioners pray that we compel the trial court to do is to grant the Office of the City Prosecutors Motion for Withdrawal of Informations against petitioners. In effect, petitioners seek to curb Judge Bays exercise of judicial discretion. There is indeed an exception to the rule that matters involving judgment and discretion are beyond the reach of a writ of mandamus, for such writ may be issued to compel action in those matters, when 5 refused. However, mandamus is never available to direct the exercise of judgment or discretion in a particular way or the retraction or reversal of an 6 action already taken in the exercise of either. In other words, while a judge refusing to act on a Motion to Withdraw Informations can be compelled by mandamus to act on the same, he cannot be compelled to act in a certain way, i.e., to grant or deny such Motion. In the case at bar, Judge Bay did not refuse to act on the Motion to Withdraw Informations; he had already acted on it by denying the same. Accordingly, mandamus is not available anymore. If petitioners believed that Judge Bay committed grave abuse of discretion in the issuance of such Order denying the Motion to Withdraw Informations, the proper remedy of petitioners should have been to file a Petition for Certiorari against the assailed Order of Judge Bay. Petitioners counter that the above conclusion, which has been argued by the Solicitor General, is contrary to a ruling of this Court, which allegedly states that the proper remedy in such cases is a Petition for Mandamus and not Certiorari. Petitioners cite the following excerpt from our ruling in 7 Sanchez v. Demetriou : The appreciation of the evidence involves the use of discretion on the part of the prosecutor, and we do not find in the case at bar a clear showing by the petitioner of a grave abuse of such discretion. The decision of the prosecutor may be reversed or modified by the Secretary of Justice or in special cases by the President of the Philippines. But even this Court cannot order the prosecution of a person against whom the prosecutor does not find sufficient evidence to support at least a prima facie case. The courts try and absolve or convict the accused but as a rule have no part in the initial decision to prosecute him. The possible exception is where there is an unmistakable showing of grave abuse of discretion that will justify a judicial intrusion into the precincts of the executive. But in such a case the proper remedy to call for such exception is a petition for mandamus, not certiorari or 8 prohibition. (Emphases supplied.) Petitioners have taken the above passage way out of its context. In the case of Sanchez, Calauan Mayor Antonio Sanchez brought a Petition for Certiorari before this Court, challenging the order of the respondent Judge

therein denying his motion to quash the Information filed against him and six other persons for alleged rape and homicide. One of the arguments of Mayor Sanchez was that there was discrimination against him because of the non-inclusion of two other persons in the Information. We held that even this Court cannot order the prosecution of a person against whom the prosecutor does not find sufficient evidence to support at least a prima facie case. However, if there was an unmistakable showing of grave abuse of discretion on the part of the prosecutors in that case, Mayor Sanchez should have filed a Petition for Mandamus to compel the filing of charges against said two other persons. In the case at bar, the Petition for Mandamus is directed not against the prosecution, but against the trial court, seeking to compel the trial court to grant the Motion to Withdraw Informations by the City Prosecutors Office. The prosecution has already filed a case against petitioners. Recently, in 9 Santos v. Orda, Jr., we reiterated the doctrine we established in the 10 leading case of Crespo v. Mogul, that once a criminal complaint or an information is filed in court, any disposition or dismissal of the case or acquittal or conviction of the accused rests within the jurisdiction, competence, and discretion of the trial court. Thus, we held: In Crespo v. Mogul, the Court held that once a criminal complaint or information is filed in court, any disposition of the case or dismissal or acquittal or conviction of the accused rests within the exclusive jurisdiction, competence, and discretion of the trial court. The trial court is the best and sole judge on what to do with the case before it. A motion to dismiss the case filed by the public prosecutor should be addressed to the court who has the option to grant or deny the same. Contrary to the contention of the petitioner, the rule applies to a motion to withdraw the Information or to dismiss the case even before or after arraignment of the accused. The only qualification is that the action of the court must not impair the substantial rights of the accused or the right of the People or the private complainant to due process of law. When the trial court grants a motion of the public prosecutor to dismiss the case, or to quash the Information, or to withdraw the Information in compliance with the directive of the Secretary of Justice, or to deny the said motion, it does so not out of subservience to or defiance of the directive of the Secretary of Justice but in sound exercise of its judicial prerogative. Petitioners also claim that since Judge Bay granted a Motion for Reinvestigation, he should have "deferred to the Resolution of Asst. City 11 Prosecutor De Vera withdrawing the case." Petitioners cite the following 12 portion of our Decision in People v. Montesa, Jr. : In the instant case, the respondent Judge granted the motion for reinvestigation and directed the Office of the Provincial Prosecutor of Bulacan to conduct the reinvestigation. The former was, therefore, deemed to have deferred to the authority of the prosecution arm of the Government to consider the so-called new relevant and material evidence 13 and determine whether the information it had filed should stand. Like what was done to our ruling in Sanchez, petitioners took specific statements from our Decision, carefully cutting off the portions which would expose the real import of our pronouncements. The Petition for Certiorari in Montesa, Jr. was directed against a judge who, after granting the Petition for Reinvestigation filed by the accused, proceeded nonetheless to arraign the accused; and, shortly thereafter, the judge decided to dismiss the case on the basis of a Resolution of the Assistant Provincial Prosecutor recommending the dismissal of the case. The dismissal of the case in Montesa, Jr. was done despite the disapproval of the Assistant Provincial Prosecutors Resolution by the Provincial Prosecutor (annotated in the same Resolution), and despite the fact that the reinvestigation the latter ordered was still ongoing, since the

Resolution of the Assistant Provincial Prosecutor had not yet attained finality. We held that the judge should have waited for the conclusion of the Petition for Reinvestigation he ordered, before acting on whether or not the case should be dismissed for lack of probable cause, and before proceeding with the arraignment. Thus, the continuation of the above paragraph of our Decision in Montesa, Jr. reads: Having done so, it behooved the respondent Judge to wait for a final resolution of the incident. In Marcelo vs. Court of Appeals, this Court ruled: Accordingly, we rule that the trial court in a criminal case which takes cognizance of an accused's motion for review of the resolution of the investigating prosecutor or for reinvestigation and defers the arraignment until resolution of the said motion must act on the resolution reversing the investigating prosecutor's finding or on a motion to dismiss based thereon only upon proof that such resolution is already final in that no appeal was taken thereon to the Department of Justice. The resolution of Assistant Provincial Prosecutor Rutor recommending the dismissal of the case never became final, for it was not approved by the Provincial Prosecutor. On the contrary, the latter disapproved it. As a consequence, the final resolution with respect to the reinvestigation is that of the Provincial Prosecutor, for under Section 4, Rule 112 of the Rules of Court, no complaint or information may be filed or dismissed by an investigating fiscal without the prior written authority or approval of the provincial or city fiscal or chief state prosecutor. Also, under Section l(d) of 14 R.A. No. 5180, as amended by P.D. No. 77 and P.D. No. 911. As can be clearly seen, the statement quoted by petitioners from Montesa, Jr. is not meant to establish a doctrine that the judge should just follow the determination by the prosecutor of whether or not there is probable cause. On the contrary, Montesa, Jr. states: The rule is settled that once a criminal complaint or information is filed in court, any disposition thereof, such as its dismissal or the conviction or acquittal of the accused, rests in the sound discretion of the court. While the prosecutor retains the discretion and control of the prosecution of the case, he cannot impose his opinion on the court. The court is the best and sole judge on what to do with the case. Accordingly, a motion to dismiss the case filed by the prosecutor before or after the arraignment, or after a reinvestigation, or upon instructions of the Secretary of Justice who reviewed the records upon reinvestigation, should be addressed to the discretion of the court. The action of the court must not, however, impair the substantial rights of the accused or the right of the People to due 15 process of law. In a seemingly desperate attempt on the part of petitioners counsel, he tries to convince us that a judge is allowed to deny a Motion to Withdraw Informations from the prosecution only when there is grave abuse of discretion on the part of the prosecutors moving for such withdrawal; and that, where there is no grave abuse of discretion on the part of the prosecutors, the denial of the Motion to Withdraw Informations is void. Petitioners counsel states in the Memorandum: 6.10. Furthermore, the ORDER dated October 2, 2006 of the Respondent Judge BAY consisting of 9 pages which was attached to the URGENT PETITION did not point out any iota of grave abuse of discretion committed by Asst. City Prosecutor De Vera in issuing his Resolution in favor of the sons of the Petitioners. Hence, the ORDER issued by RJBAY is NULL and VOID in view of the recent ruling of the Hon. Supreme Court in Ledesma vs. Court of Appeals, G.R. No. 113216, September 5, 1997, 86 SCAD 695, 278 SCRA 657 which states that: "In the absence of a finding of grave abuse of discretion, the courts bare denial of a motion to withdraw information pursuant to the Secretarys resolution is void." (Underscoring ours).

6.11. It is therefore respectfully submitted that the Hon. Supreme Court 16 disregard the argument of the OSG because of its falsity. This statement of petitioners counsel is utterly misleading. There is no 17 such statement in our Decision in Ledesma. The excerpt from Ledesma, which appears to have a resemblance to the statement allegedly quoted from said case, provides: No Grave Abuse of Discretion in the Resolution of the Secretary of Justice In the light of recent holdings in Marcelo and Martinez; and considering that the issue of the correctness of the justice secretary's resolution has been amply threshed out in petitioner's letter, the information, the resolution of the secretary of justice, the motion to dismiss, and even the exhaustive discussion in the motion for reconsideration - all of which were submitted to the court - the trial judge committed grave abuse of discretion when it denied the motion to withdraw the information, based solely on his bare and ambiguous reliance on Crespo. The trial court's order is inconsistent with our repetitive calls for an independent and competent assessment of the issue(s) presented in the motion to dismiss. The trial judge was tasked to evaluate the secretary's recommendation finding the absence of probable cause to hold petitioner criminally liable for libel. He failed to do so. He merely ruled to proceed with the trial without stating his 18 reasons for disregarding the secretary's recommendation. (Emphasis supplied.) It very much appears that the counsel of petitioners is purposely misleading this Court, in violation of Rule 10.02 of the Code of Professional Responsibility, which provides: Rule 10.02 A lawyer shall not knowingly misquote or misrepresent the contents of a paper, the language or the argument of opposing counsel, or the text of a decision or authority, or knowingly cite as law a provision already rendered inoperative by repel or amendment, or assert as a fact that which has not been proved. Counsels use of block quotation and quotation marks signifies that he intends to make it appear that the passages are the exact words of the Court. Furthermore, putting the words "Underscoring ours" after the text implies that, except for the underscoring, the text is a faithful reproduction of the original. Accordingly, we are ordering Atty. Procopio S. Beltran, Jr. to show cause why he should not be disciplined as a member of the Bar. To clarify, we never stated in Ledesma that a judge is allowed to deny a Motion to Withdraw Information from the prosecution only when there is grave abuse of discretion on the part of the prosecutors moving for such withdrawal. Neither did we rule therein that where there is no grave abuse of discretion on the part of the prosecutors, the denial of the Motion to Withdraw Information is void. What we held therein is that a trial judge commits grave abuse of discretion if he denies a Motion to Withdraw Information without an independent and complete assessment of the issues presented in such Motion. Thus, the opening paragraph of Ledesma states: When confronted with a motion to withdraw an information on the ground of lack of probable cause based on a resolution of the secretary of justice, the bounden duty of the trial court is to make an independent assessment of the merits of such motion. Having acquired jurisdiction over the case, the trial court is not bound by such resolution but is required to evaluate it before proceeding further with the trial. While the secretary's ruling is persuasive, it is not binding on courts. A trial court, however, commits reversible error or even grave abuse of discretion if it refuses/neglects to evaluate such recommendation and simply insists on proceeding with the trial on the mere pretext of having already acquired 19 jurisdiction over the criminal action. (Emphases supplied.)1avvphi1.zw+

Petitioners also try to capitalize on the fact that the dispositive portion of the assailed Order apparently states that there was no probable cause against petitioners: WHEREFORE, finding no probable cause against the herein accused for the crimes of rapes and acts of lasciviousness, the motion to withdraw informations is DENIED. Let the case be set for arraignment and pre-trial on October 24, 2006 at 20 8:30 oclock in the morning. (Underscoring ours.) Thus, petitioners claim that since even the respondent judge himself found no probable cause against them, the Motion to Withdraw Informations by 21 the Office of the City Prosecutor should be granted. Even a cursory reading of the assailed Order, however, clearly shows that the insertion of the word "no" in the above dispositive portion was a mere clerical error. The assailed Order states in full: After a careful study of the sworn statements of the complainants and the resolution dated March 3, 2006 of 2nd Assistant City Prosecutor Lamberto C. de Vera, the Court finds that there was probable cause against the herein accused. The actuations of the complainants after the alleged rapes and acts of lasciviousness cannot be the basis of dismissal or withdrawal of the herein cases. Failure to shout or offer tenatious resistance did not make voluntary the complainants submission to the criminal acts of the accused (People v. Velasquez, 377 SCRA 214, 2002). The complainants affidavits indicate that the accused helped one another in committing the acts complained of. Considering that the attackers were not strangers but their trusted classmates who enticed them to go to the house where they were molested, the complainants cannot be expected to react forcefully or violently in protecting themselves from the unexpected turn of events. Considering also that both complainants were fifteen (15) years of age and considered children under our laws, the ruling of the Supreme Court in People v. Malones, G.R. Nos. 124388-90, March 11, 2004 becomes very relevant. The Supreme Court ruled as follows: Rape victims, especially child victims, should not be expected to act the way mature individuals would when placed in such a situation. It is not proper to judge the actions of children who have undergone traumatic experience by the norms of behavior expected from adults under similar circumstances. The range of emotions shown by rape victim is yet to be captured even by calculus. It is, thus, unrealistic to expect uniform reactions from rape victims (People v. Malones, G.R. Nos. 124388-90, March 11, 2004). The Court finds no need to discuss in detail the alleged actuations of the complainants after the alleged rapes and acts of lasciviousness. The alleged actuations are evidentiary in nature and should be evaluated after full blown trial on the merits. This is necessary to avoid a suspicion of 22 prejudgment against the accused. As can be seen, the body of the assailed Order not only plainly stated that the court found probable cause against the petitioners, but likewise provided an adequate discussion of the reasons for such finding. Indeed, the general rule is that where there is a conflict between the dispositive portion or the fallo and the body of the decision, the fallo controls. However, where the inevitable conclusion from the body of the decision is so clear as to show that there was a mistake in the dispositive portion, the 23 body of the decision will prevail. In sum, petitioners resort to a Petition for Mandamus to compel the trial judge to grant their Motion to Withdraw Informations is improper. While mandamus is available to compel action on matters involving judgment and discretion when refused, it is never available to direct the exercise of judgment or discretion in a particular way or the retraction or reversal of an 24 action already taken in the exercise of either. The trial court, when

confronted with a Motion to Withdraw an Information on the ground of lack of probable cause, is not bound by the resolution of the prosecuting arm of the government, but is required to make an independent assessment of the merits of such motion, a requirement satisfied by the respondent judge 25 in the case at bar. Finally, if only to appease petitioners who came to this Court seeking a review of the finding of probable cause by the trial court, we nevertheless carefully reviewed the records of the case. After going through the same, we find that we are in agreement with the trial court that there is indeed probable cause against the petitioners sufficient to hold them for trial. We decided to omit a detailed discussion of the merits of the case, as we are not unmindful of the undue influence that might result should this Court do so, even if such discussion is only intended to focus on the finding of probable cause. WHEREFORE, the instant Petition for Mandamus is DISMISSED. Let the records of this case be remanded to the Regional Trial Court of Quezon City for the resumption of the proceedings therein. The Regional Trial Court is directed to act on the case with dispatch. Atty. Procopio S. Beltran, Jr. is ORDERED to SHOW CAUSE why he should not be disciplined as a member of the Bar for his disquieting conduct as herein discussed. SO ORDERED. G.R. No. 134504 March 17, 2000 JOSELITO V. NARCISO, petitioner, vs. FLOR MARIE STA. ROMANA-CRUZ, respondent. PANGANIBAN, J.: When the penalty prescribed by law is death, reclusion perpetua or life imprisonment, a hearing must be conducted by the trial judge before bail can be granted to the accused. Absent such hearing, the order granting bail is void for having been issued with grave abuse of discretion. In parricide, the accused cannot be considered an offended party just because he was married to the deceased. In the interest of justice and in view of the peculiar circumstances of this case, the sister of the victim may be deemed to be an "offended party"; hence, she has the legal personality to challenge the void order of the trial court. The Case We invoke the foregoing principles in rejecting the Petition for Review 1 on Certiorari before us, assailing the February 26, 1998 Decision and the 2 June 29, 1998 Resolution of the Court of Appeals (CA), which reversed and set aside the Order of Executive Judge Pedro T. Santiago of the Regional Trial Court (RTC) of Quezon City, Branch 101, in Criminal Case No. Q-91-24179 entitled "People of the Philippines v. Joselito V. Narciso." The dispositive portion of the challenged CA Decision reads: WHEREFORE, the petition for certiorari is hereby GRANTED and the order granting bail is annulled and 3 set aside. The assailed Resolution, on the other hand, denied petitioner's Motion for Reconsideration. The full text of the August 3, 1992 RTC Order, which the Court of Appeals annulled and set aside, reads as follows:

Accused who is present filed thru counsel a Motion to Allow Accused Joselito V. Narciso to Post Bail. Considering that the Presiding Judge of Branch 83 who is hearing this case is on leave and the Pairing Judge Honorable Salvador Ceguerra is no longer within the premises, there being no objection by the City Prosecutor Candido Rivera to the accused posting a cashbond of P150,000.00, the undersigned in his capacity as Executive Judge hereby approves 4 the same.

7) Accused objected to the aforesaid urgent motion by filing a "Motion to Expunge 1) Notice of Appearance of the Private Prosecutor and the 2) Urgent Motion to Lift Order Allowing Accused to Post Bail". 8) Arraignment was conducted on September 14, 1992 and the case was set for hearing on November 9, 16, 23, December 2, 9, 1992, January 6, 13, 20, 27, 1993, February 3, 7, 10 and 24 1993. 9) On October 15, 1992, private complainant through counsel filed her opposition to the motion to expunge [filed by] accused. 10). On November 3, 1992 private complainant moved for the postponement of the trials set on November 9, 16 and 23 and the subsequent hearings thereon pending the resolution of their "Urgent Motion to Lift Order Allowing Accused To Post Bail". 11) On November 9, 1992, the court issued the first assailed order stating therein to wit: ORDER Counsel for the accused, upon being informed of the motion for postponement dated November 3, 1992 filed by the private complainant, through counsel, offered no objection to the cancellation of today's trial but not the trial set on November 16, 23 and December 2 and 9, 1992 for the reason that the trial can proceed independently of the pending "Urgent Motion to Lift Order Allowing the Accused to Post Bail". WHEREFORE, the trial set for today is hereby cancelled and reset on November 16, 1992 at 10:30 o'clock in the morning, as previously scheduled. SO ORDERED. 12) On November 16, 1992, the court cancelled the hearing upon motion of the public prosecutor because no prosecution witness was available. 13) [I]n the hearing of November 23, 1992, the private prosecutor again moved for postponement because of the pendency of his "Motion to Lift Order Allowing Accused to Post Bail". On the same date, the court issued the second assailed order which reads: ORDER On motion of the Asst. City Prosecutor, for the reason that there is no showing in the record that the private complainant was

The Facts of the Case

The undisputed antecedents of the case were summarized by the Court of Appeals as follows: 1) After conducting a preliminary investigation on the death of Corazon Sta. Romana-Narciso, wife of Joselito Narciso, Asst. City Prosecutor Myrna Dimaranan Vidal of Quezon City recommended and thereafter filed, the information for parricide against Joselito Narciso on November 13, 1991, with the Regional Trial Court of Quezon City, docketed therein as Criminal Case No. Q-91-24179. 2) Joselito Narciso thereafter asked for a review of the prosecutor's resolution [before] the Department of Justice (DOJ) which was however denied. Joselito Narciso moved for reconsideration, which was still denied by the DOJ. 3) Failing before DOJ, the accused on February 6, 1992, filed in Criminal Case No. Q-91-24179 an "Omnibus Motion for Reinvestigation and to Lift the Warrant of Arrest". The Motion was granted and the case was set for reinvestigation by another prosecutor. 4) Assistant Prosecutor Lydia A. Navarro, to whom the case was assigned for reinvestigation, found no reason to disturb the findings of the previous prosecutor and recommended the remand of the case to the court for arraignment and trial. 5) On August 3, 1992, accused filed an "Urgent ExParte (Ex Abundanti Cautela) to Allow Accused Joselito Narciso to Post Bail". The Public Prosecutor registered no objection and said motion was granted on the same day, allowing accused to post bail at P150,000.00. xxx xxx xxx 6) On August 14, 1992, the private prosecutor representing private complainant Flor Marie Sta. Romana-Cruz, a sister of accused's deceased wife, filed an "Urgent Motion to Lift Order Allowing Accused To Post Bail".

duly notified, hence, there is no available witness this morning, the trial set for today is hereby cancelled and reset on December 2 and 9, 1992 both at 10:30 o'clock in the morning, as previously scheduled. Let a subpoena be issued to complainant Corazon [sic] Sta. Romana-Narciso, the same to be served personally by the Deputy Sheriff/Process server of this Court. The accused is notified of this Order in open court. SO ORDERED. Not obtaining any resolution on her "Motion To Lift Order Allowing Accused to Post Bail", private complainant filed this petition [before the CA].

B Whether or not the private respondent has the legal personality to intervene in the present criminal case.

be submitted to the court, the petitioner having the right of cross examination and to introduce his own evidence in rebuttal." xxx xxx xxx Consequently, in the application for bail of a person charged with a capital offense punishable by death, reclusion perpetua or life imprisonment, a hearing, whether summary or otherwise in the discretion of the court, must actually be conducted to determine whether or not the evidence of guilt against the accused is strong. "A summary hearing means such brief and speedy method of receiving and considering the evidence of guilt as is practicable and consistent with the purpose of hearing which is merely to determine the weight of evidence for the purposes of bail. On such hearing, the court does not sit to try the merits or to enter into any nice inquiry as to the weight that ought to be allowed to the evidence for or against the accused, nor will it speculate on the outcome of the trial or on what further evidence may be therein offered and admitted. The course of inquiry may be left to the discretion of the court which may confine itself to receiving such evidence as has reference to substantial matters, avoiding unnecessary thoroughness in the examination and cross examination." If a party is denied the opportunity to be heard, there would be a violation of procedural due process. (Emphasis supplied.) Jurisprudence is replete with decisions compelling judges to conduct the required hearings in bail applications, in which the accused stands charged with a capital offense. The absence of objection from the prosecution is never a basis for the grant of bail in such cases, for the judge has no right to presume that the prosecutor knows what he is doing on account of familiarity with the case. "Said reasoning is tantamount to ceding to the prosecutor the duty of exercising judicial discretion to determine whether the guilt of the accused is strong. Judicial discretion is the domain of the judge before whom the petition for provisional liberty will be decided. The mandated duty to exercise discretion has never been 9 reposed upon the prosecutor. Imposed in Baylon v. Sison was this mandatory duty to conduct a hearing despite the prosecution's refusal to adduce evidence in opposition to the application to grant and fix bail. We quote below the pertinent portion of the Decision therein: The importance of a hearing has been emphasized in not a few cases wherein the Court ruled that even if the prosecution refuses to adduce evidence or fails to interpose an objection to the motion for bail, it is still mandatory for the court to conduct a hearing or ask searching questions from which it may infer the strength of the evidence of guilt, or the lack of it, against the accused. In Gimeno v. Arcueno Sr.,
11 10

To resolve this case, the Court believes that two issues must be taken up; namely, (1) the validity of the grant of bail and (2) private respondent's standing to file the Petition before the CA. The Court's Ruling The Petition is devoid of merit. First Issue: Validity of the Grant of Bail Sec. 13, Article III of the Constitution, provides: "All persons, except those charged with offenses punishable byreclusion perpetua when evidence of guilt is strong, shall, before conviction, be bailable by sufficient sureties, or be released on recognizance as may be provided by law. The right to bail shall not be impaired even when the privilege of the writ of habeas corpus is suspended. Excessive bail shall not be required." Furthermore, Section 7, Article 114 of the Rules of Court, as amended, also provides: "No person charged with a capital offense, or an offense punishable by reclusion perpetua or life imprisonment, when evidence of guilt is strong, shall be admitted to bail regardless of the stage of the criminal prosecution." Although petitioner was charged with parricide which is punishable with reclusion perpetua, he argued before the CA that he was entitled to bail because the evidence of his guilt was not strong. He contended that the prosecutor's conformity to his Motion for Bail was tantamount to a finding that the prosecution evidence against him was not strong. The Court of Appeals ruled, however, that there was no basis for such finding, since no hearing had been conducted on the application for bail summary or otherwise. The appellate court found that only ten minutes had elapsed between the filing of the Motion by the accused and the Order granting bail, a lapse of time that could not be deemed sufficient for the trial court to receive and evaluate any evidence. We agree with the CA. Stressing in Basco v. Rapatalo that the judge had the duty to determine whether the evidence of guilt was strong, the Court held: When the grant of bail is discretionary, the prosecution has the burden of showing that the evidence of guilt against the accused is strong. However, the determination of whether or not the evidence of guilt is strong, being a matter of judicial discretion, remains with the judge. "This discretion by the very nature of things, may rightly be exercised only after the evidence is submitted to the court at the hearing. Since the discretion is directed to the weight of the evidence and since evidence cannot properly be weighed if not duly exhibited or produced before the court, it is obvious that a proper exercise of judicial discretion requires that the evidence of guilt
8

As earlier mentioned, the Court of Appeals granted private respondent's Petition for Certiorari. Hence, this recourse to us via Rule 45 of the Rules 5 of Court.

The Issues

Petitioner imputes to the Court of Appeals this alleged error:

The Respondent Court of Appeals has erroneously decided questions of substance, in a manner not in accord with law, the Rules of Court and applicable jurisprudence, as exemplified in the decisions of this Honorable Court, when it reversed and set aside the order of the Regional Trial Court of Quezon City which granted the petitioner his constitutional right to bail, considering the absence of strong evidence or proof of his guilt, and more especially when the public prosecutors, who have direct control of the proceedings and after assessment of the evidence, 6 have themselves recommended the grant of bail. Respondent, on the other hand, poses the following issues: A Whether or not the Respondent Court of Appeals correctly ruled that the Order of the Regional Trial Court which granted bail to the petitioner is substantially and procedurally infirm notwithstanding the absence of any opposition from the public prosecutor.
7

the Court also held:

The grant of bail is a matter of right except in cases involving capital offenses when the matter is left to the

sound discretion of the court. That discretion lies, not in the determination whether or not a hearing should be held but in the appreciation and evaluation of the prosecution's evidence of guilt against the accused. . . . A hearing is plainly indispensable before a judge can aptly be said to be in a position to determine whether the evidence for the prosecution is weak or strong. And in Concerned Citizens v. Elma,
12

Petitioner attacks respondent's legal standing to file the Petition for Certiorari before the appellate court, maintaining that only the public prosecutor or the solicitor general may challenge the assailed Order. He 16 invokesPeople v. Dacudao which ruled: . . . A private prosecutor in a criminal case has no authority to act for the People of the Philippines before this Court. It is the Government's counsel, the Solicitor General who appears in criminal cases or incidents before the Supreme Court. At the very least, the Provincial Fiscal himself, with the conformity of the Solicitor General, should have raised the issue (of whether or not the prosecution was deprived of procedural due process on account of the grant of bail to the accused without any hearing on the motion for bail) before us, instead of the private prosecutor with the conformity of the Assistant Provincial Fiscal of Cebu. He also cites Republic v. Partisala
17

the Court ruled:

It is true that the weight of the evidence adduced is addressed to the sound discretion of the court. However, such discretion may only be exercised after the hearing called to ascertain the degree of guilt of the accused for the purpose of determining whether or not he should be granted liberty. Basco v. Rapatalo summarized several cases that emphasized the mandatory character of a hearing in a petition for bail in a capital case. It enunciated the following duties of the trial judge in such petition. (1) Notify the prosecutor of the hearing of the application for bail or require him to submit his recommendation (Section 18, Rule 114 of the Rules of Court as amended; (2) Conduct a hearing of the application for bail regardless of whether or not the prosecution refuses to present evidence to show that the guilt of the accused is strong for the purpose of enabling the court to exercise its sound discretion (Sections 7 and 8, supra); (3) Decide whether the evidence of guilt of the accused is strong based on the summary of evidence of the prosecution (Baylon v. Sison, supra); (4) If the guilt of the accused is not strong, discharge the accused upon the approval of the bailbond. (Section 19, supra). Otherwise, petition should be denied. The Court added: "The above-enumerated procedure should now leave no room for doubt as to the duties of the trial judge in cases of bail applications. So basic and fundamental is it to conduct a hearing in connection with the grant of bail in the proper cases that it would amount to judicial apostasy for any member of the judiciary to disclaim knowledge or awareness thereof." Additionally, the court's grant or refuse of bail must contain a summary of the evidence for the prosecution, on the basis of which should be formulated the judge's own conclusion on whether such evidence is strong enough to indicate the guilt of the accused. The summary thereof is considered an aspect of procedural due process for both the prosecution and the defense; its absence will invalidate the grant or the denial of the application for bail.Clearly, the grant of bail by Executive Judge Santiago was laced with grave abuse of discretion and the Court of Appeals was correct in reversing him.
13 14

personality as "person(s) aggrieved" by petitioner judge's ruling on his non-disqualification to file the special civil action under sections 1 and 2 of Rule 65. Recently, in line with the underlying spirit of a liberal construction of the Rules of Court in order to promote their object, as against the literal interpretation of Rule 110, section 2, we held, overruling the implication of an earlier case, that a widow possesses the right as an offended party to file a criminal complaint for the murder of her deceased husband. (Id., p. 699) The ends of substantial justice indeed require the affirmation of the appellate court's ruling on this point. Clearly, the assailed Order of Judge Santiago was issued in grave abuse of discretion amounting to lack of 19 jurisdiction. A void order is no order at all. It cannot confer any right or be the source of any relief. This Court is not merely a court of law; it is likewise a court of justice. To rule otherwise would leave the private respondent without any recourse to rectify the public injustice brought about by the trial court's Order, leaving her with only the standing to file administrative charges for ignorance of the law against the judge and the prosecutor. A party cannot be left without recourse to address a substantive issue in law. Moreover, we agree with the Office of the Solicitor General that "it is too late in the day for the petitioner to challenge the legal personality of private respondent considering that it was never disputed by [him] during the preliminary investigation of the case, in his appeal to the Department of 20 Justice and during the reinvestigation of the case." Corollary to the question of standing, petitioner submits that even if the exception were made to apply, private respondent is not an "offended party" who is granted the right to challenge the assailed RTC Order. He maintains that only the compulsory heirs of the deceased, who are the accused himself and his minor child, may file the instant action. We disagree. It should be remembered that the crime charged against the private respondent is parricide; hence, the accused cannot be regarded as an offended party. That would be a contradiction in terms and an absurdity in fact. Nor can one expect the minor child to think and to act for himself. Hence, we rule that in view of the peculiar circumstances of this case, the sister of the deceased is a proper party-litigant who is akin to the "offended party," she being a closer relative of the deceased. There is no closer kin who may be expected to take up the cudgels of justice for the deceased. WHEREFORE, the Petition is DENIED and the assailed Decision AFFIRMED. Costs against petitioner. SO ORDERED.1wphi1.nt LIGAYA V. SANTOS, petitioner, JR., respondent. vs. DOMINGO I. ORDA,

which held as follows:

We make it known that only the Solicitor General can bring or defend actions on behalf of the Republic of the Philippines. Henceforth actions filed in the name of the Republic of the Philippines if not initiated by the Solicitor General will be summarily dismissed. Citing the "ends of substantial justice," People 18 v. Calo, however, provided an exception to the above doctrines in this manner: While the rule is, as held by the Court of Appeals, only the Solicitor General may bring or defend actions on behalf of the Republic of the Philippines, or represent the People or the State in criminal proceedings pending in this Court and the Court of Appeals (Republic vs. Partisala, 118 SCRA 320 [1982]), the ends of substantial justice would be better served, and the issues in this action could be determined in a more just, speedy and inexpensive manner, by entertaining the petition at bar. As an offended party in a criminal case, private petitioner has sufficient personality and a valid grievance against Judge Adao's order granting bail to the alleged murderers of his (private petitioner's) father. In Paredes vs. Gopengco, 29 SCRA 688 (1969), this Court ruled that the offended parties in criminal cases have sufficient interest and personality as "person(s) aggrieved" to file the special civil action of prohibition and certiorari under Sections 1 and 2 of Rule 65 in line with the underlying spirit of the liberal construction of the Rules of Court in order to promote their object, thus: Furthermore, as offended parties in the pending criminal case before petitioner judge, it cannot be gainsaid that respondents have sufficient interest and

Second Issue: Respondent's Standing to File the Petition

DECISION CALLEJO, SR., J.: This is a petition for review on certiorari of the Decision of the Court of Appeals in CA-G.R. SP No. 72962 granting the petition for [2] certiorari filed by Domingo I. Orda, Jr. and nullifying the Orders of the Regional Trial Court of Paraaque City, Branch 258 dated July 5, 2002 and July 23, 2002 in People v. Ligaya V. Santos, et al., for murder, docketed as Criminal Cases Nos. 01-0921 and 01-0425.
[1]

instead. For his part, Dennis alleged that at 9:00 a.m. on April 3, 2001, Tonion asked him to return the gun to Santos for him, but that he refused to do so. On April 15, 2001, Santos asked him to monitor the activities of the respondent and his son at the store owned by the latter, located at the LRT Station at Arroceros. The respondent executed an affidavit-complaint dated June 7, 2001 and filed the same in the Office of the City Prosecutor of Paraaque City, charging Santos, Cortez and Ybaez with murder for the death of his son [8] Francis. The case was docketed as I.S. No. 01-F-2052. In her counter-affidavit, Santos denied the charge and claimed that the affidavits executed by Ernesto and Dennis were all lies. She averred that she was in their house in Cavite City on April 1, 2001 and returned to Manila only in the early morning of April 2, 2001. Her alibi was corroborated by the affidavits of Anthony Alejado, Marianito Fuentes, Normita Samonte, and Lilian Lemery. She also denied Dennis claims that she asked him to monitor the activities of the respondent and his son on April 15, 2001. She alleged that the respondent filed the charge and other baseless charges against her to enable him to gain control over Plaza Lawton where his store was located. Cortez also denied the charge. She claimed in her affidavit that Santos was not in her office on April 1, 2001, it being a Sunday. She alleged that the affidavits of Dennis and Ernesto were lies. On July 31, 2001, the investigating prosecutor issued a Resolution [9] finding probable cause against Santos and Cortez for murder. An Information for murder was, thereafter, filed on August 29, 2001 [10] against Santos and Cortez, docketed as Criminal Case No. 01-0921. On August 30, 2001, Azarcon executed an affidavit implicating Barangay Kagawad Christopher Castillo, his brother Girlie Castillo, and Robert Bunda for the killing of Francis. On the same day, the respondent [11] executed an affidavit-complaint charging them for the same crime. On September 7, 2001, the trial court issued an Order requiring the [12] prosecutor to submit additional evidence against Cortez. Sabino M. Frias, thereafter, executed an affidavit on September 18, 2001, implicating Santos, Cortez, the Castillo brothers, Bunda, and Pedro [13] Jimenez, the driver of Santos, in the killing of Francis. Meanwhile, Santos, Cortez, and Ybaez filed a petition for review of the resolution of the prosecutor in I.S. No. 01-F-2052 in the Department of [14] Justice (DOJ). On their motion, the trial court suspended the proceedings against Santos and Cortez and the issuance of warrants for their arrest. However, on September 12, 2001, Azarcon executed an affidavit recanting her statement against the Castillo brothers and [15] Bunda. In the meantime, during the hearing on October 23, 2001, the prosecution terminated the presentation of its testimonial evidence in Criminal Case No. 01-0425 on the accused Tonion and Sorianos petition for bail and offered its documentary evidence. The accused presented Azarcon as their first witness to prove their innocence of the crime charged. On November 12, 2001, the public prosecutor issued a Resolution in I.S. No. 01-H-3410 finding probable cause for murder against the Castillo brothers and Bunda. On November 28, 2001, the public prosecutor filed a motion to amend information and to admit amended information against

[7]

The Antecedents

On January 17, 2001, Dale B. Orda, a college student and son of respondent, Assistant City Prosecutor of Manila Domingo Orda, Jr., was shot by a male person on a motorcycle at the corner of Ayala Boulevard and San Marcelino Street, Manila. Dale was then seated at the passengers seat at the back of their car, while his father was at the [3] wheel. Fortunately, Dale survived the shooting. At about 6:20 p.m. on April 2, 2001, another son of the respondent, Francis Orda, a twenty-year-old senior engineering student of the Mapua Institute of Technology, was shot to death at Saudi Arabia Street corner Sierra Leone Street, Better Living Subdivision, Barangay Don Bosco, Paraaque City. Gina Azarcon, a helper at the Bakers Brew Coffee Shop at the corner of Saudi Arabia and Somalia Streets, Barangay Don Bosco, gave a sworn statement to the police investigators on April 1, 2001, declaring that three male persons perpetrated the crime, two of whom shot [4] the victim inside his car. On April 7, 2001, Azarcon gave a supplemental affidavit pointing to and identifying Rolly Tonion and Jhunrey Soriano as two of the [5] assailants. An Information was filed in the RTC of Paraaque City, docketed as Criminal Case No. 01-0425 on April 18, 2001, charging Rolly Tonion alias Komang and Jhunrey Soriano with murder for the killing of [6] Francis Orda. The accused filed a petition for bail. The prosecution presented Gina Azarcon as its witness in opposition to the petition. On June 7, 2001, Ernesto M. Regala and his son, Dennis C. Regala, a barangay tanod of Barangay 659, Arroceros, Ermita, Manila, executed separate affidavits before the Assistant City Prosecutor of Paraaque City. Ernesto narrated that at about 10:00 p.m. on April 1, 2001, he sent his son, Dennis, to deliver collections from the public toilet at Arroceros to Barangay Chairman Ligaya Santos. When Dennis had not yet arrived by 11:00 p.m., he decided to fetch his son. While they were in Santos office, Dennis and Ernesto heard Santos saying, Gusto ko malinis na trabaho at walang bulilyaso, baka makaligtas na naman si Orda. They saw Santos give a gun to Rolly Tonion, who was then with Edna Cortez, a certain Nognog, Ronnie Ybaez, and another male companion. Dennis then gave Ernestos collection amounting to P400 toSantos. At 11:00 p.m. on April 2, 2001, Cortez told Ernesto that the son of the assistant city prosecutor was ambushed at the Better Living Subdivision, and that the latter was fortunate because the bullet intended for him hit his son

them as additional accused. The accused, thereafter, filed a petition for review of the resolution of the public prosecutor before the DOJ on [17] January 7, 2002. They also filed a motion to suspend proceedings and the issuance of warrants of arrest in Criminal Cases Nos. 01-0425 and 010921 and a motion to admit newly discovered evidence, namely, Azarcons [18] affidavit of recantation. The public prosecutor opposed the motion and filed a motion to admit second amended information with Pedro Jimenez [19] as additional accused. On February 5, 2002, the trial court issued an Order denying the motion of the accused Castillo brothers and Bunda and ordering the issuance of warrants for the arrest of Santos and [20] Cortez. The court then issued the said warrants based on its finding of [21] probable cause against them for lack of probable cause to recall the warrants of arrest, and to examine the witnesses. The court, however, denied the motion on the ground that it had not yet acquired jurisdiction over their persons and it had not yet received any resolution from the Secretary of Justice on their petition for review. On February 20, 2002, the trial court issued an Order denying the petition for bail by Tonion and [22] Soriano, ruling that the evidence of guilt was strong. In the meantime, [23] Ernesto and Dennis recanted their affidavits. During the trial on April 23, 2002 in Criminal Case No. 01-0425, [24] accused Tonion and Soriano presented Dennis as their witness. On April 26, 2002, the trial court issued an Order admitting the second amended Information against the Castillo brothers, Bunda, and [25] Jimenez and ordering the issuance of warrants for their arrest. On April 29, 2002, the said warrants were issued by the court. On June 11, 2002, Secretary of Justice Hernando B. Perez issued a Joint Resolution reversing the assailed resolution of the public prosecutor and directing the latter to withdraw the Informations against Santos, Cortez, Bunda, the Castillo brothers, and Jimenez. The Secretary of Justice found Azarcon, Frias, Dennis, and Ernesto incredible witnesses because of their recantations, to wit: WHEREFORE, the petition is GRANTED and the assailed resolutions are hereby REVERSED AND SET ASIDE. The City Prosecutor of Paraaque City is hereby directed to cause the withdrawal of the criminal Informations for murder filed before the Regional Trial Court, Branch 258, Paraaque City, against respondents LIGAYA SANTOS, EDNA CORTEZ and RONNIE YBAEZ (I.S. No. 01-F-2052) and against respondents CHRISTOPHER and GIRLIE CASTILLO and ROBERT BUNDA (I.S. No. 01-H-3410) and to report to this Department the action taken within ten (10) days from receipt hereof. [26] SO ORDERED. On June 27, 2002, the respondent filed a motion for reconsideration thereof. However, the public prosecutor filed a motion to withdraw the Informations in the two cases on June 20, 2002 in compliance with the joint resolution of the Secretary of Justice. On July 2, 2002, the respondent filed a comment/opposition to the motion to withdraw the Informations filed by the public prosecutor, contending: I- THAT COMPLAINANT HEREBY ADOPTS ITS POSITION RAISED IN ITS MOTION FOR RECONSIDERATION FILED WITH THE DEPARTMENT OF JUSTICE (COPY ATTACHED AS ANNEX A). HENCE, THE DETERMINATION OF THE INSTANT MOTION IS STILL PREMATURE ESPECIALLY SO THAT ALL THE ACCUSED-MOVANTS ARE STILL AT LARGE, EVADING

[16]

SERVICE OF ARREST WARRANT, IN WHICH CASE THEY ARE NOT ENTITLED TO ANY RELIEF; II- THAT THE LATE (SIC) FINDINGS OF NO PROBABLE CAUSE FOR THE ACCUSED BY THE DEPARTMENT OF JUSTICE IS NOT BINDING; III- THAT THE HONORABLE COURT HAS JUDICIOUSLY AND SOUNDLY ADJUDGED THE EXISTENCE OF PROBABLE CAUSE; and, IV- THAT TO GIVE DUE COURSE TO THE INSTANT MOTION WOULD ONLY CREATE CHAOS AND [27] INJUSTICE. Pending resolution of the motion for reconsideration, the trial court issued an Order on July 5, 2002 granting the motion of the public prosecutor to withdraw the Informations in the interest of justice and [28] equity. The trial court ruled that such withdrawal would not prevent the refiling of the Informations against the accused who would not be able to invoke double jeopardy, considering that the court had not yet acquired jurisdiction over their persons. The private complainant filed a motion for reconsideration of the order which was not opposed by the public prosecutor. Nonetheless, on July 23, 2002, the trial court issued an Order denying the motion on the ground that it could not order the refiling of the [29] Informations if the DOJ and the public prosecutor refused to do so. The respondent forthwith filed a petition for certiorari with the Court of Appeals (CA) assailing the orders of the trial court. On March 19, 2003, the CA rendered a Decision granting the petition. The appellate court ruled that the trial court abused its discretion in granting the withdrawal of the Informations without making an independent evaluation on the merits of the case. Santos filed a motion for reconsideration of the decision and a supplement to the said motion, which was opposed by the respondent. On May 6, 2003, Santos and Cortez were arrested based on the warrants issued by the trial court. On May 22, 2003, the CA issued a resolution denying the said motion for reconsideration for lack of merit. Santos filed a petition for review on certiorari with this Court contending as follows: A.) THE COURT OF APPEALS ERRED GRAVELY AND ACTED ARBITRARILY IN NULLIFYING THE ORDER OF THE TRIAL COURT GRANTING THE PROSECUTIONS MOTION TO WITHDRAW THE INFORMATIONS IN CRIMINAL CASES NOS. 01-0921 AND 01-0425 PURSUANT TO DOJ JOINT RESOLUTION DATED 11 JUNE 2002. THE COURT OF APPEALS COMMITTED GRAVE ERROR IN DIRECTLY REINSTATING THE CRIMINAL COMPLAINTS, INCLUDING THE WARRANTS OF ARREST, WITHOUT AFFORDING THE TRIAL COURT THE OPPORTUNITY TO EXERCISE ITS JUDICIAL PREROGATIVE OF DETERMINING WHETHER TO PURSUE OR DISMISS THE COMPLAINTS PURSUANT TO ITS OWN EVALUATION OF THE CASE AND

EVIDENCE IN LIGHT OF THE DOJ JOINT RESOLUTION [30] FINDING LACK OF PROBABLE CAUSE. The threshold issue is whether or not the trial court committed grave abuse of its discretion amounting to excess or lack of jurisdiction in granting the public prosecutors motion to withdraw the Informations and in lifting the warrant of arrest against the petitioner on the Secretary of Justices finding that there was no probable cause for the filing of the said Informations. The petitioner avers that the trial court did not abuse its judicial discretion when it granted the motion of the public prosecutor to withdraw the two Informations as ordered by the Secretary of Justice in his Joint Resolution on the finding that there was no probable cause against the accused therein to be charged with murder. The petitioner asserts that, by allowing the withdrawal of the Informations without an independent assessment of the merit of the evidence and without prejudice to the refiling thereof, the court did not thereby order the dismissal of the cases for insufficiency of evidence. The petitioner posits that, after all, the trial court had not yet acquired complete criminal jurisdiction to resolve the cases because it had not yet acquired jurisdiction over the persons of all the accused. The petitioner argues that the CA erred in relying on the [31] rulings of this Court in Crespo v. Mogul and Perez v. Hagonoy Rural [32] Bank, Inc. because the said cases involve the withdrawal of the Informations and the dismissal of the cases for insufficiency of evidence. In contrast, the public prosecutor filed a motion merely to withdraw the Informations and not to dismiss the cases due to insufficiency of evidence. In its comment on the petition, the Office of the Solicitor General (OSG) avers that the decision of the CA is in conformity with the rulings of [33] this Court in Balgos, Jr. v. Sandiganbayan, Dee v. Court of [35] [34] Appeals, Roberts, Jr. v. Court of Appeals, Ledesma v. Court of [36] [37] Appeals, Jalandoni v. Drilon and Solar Team Entertainment, Inc. v. [38] How. The OSG asserts that the rulings of this Court apply whether the motion filed by the public prosecutor was for the withdrawal of the Informations due to lack of probable cause or insufficiency of evidence. The OSG avers that the trial court had acquired jurisdiction over the persons of all the accused, either by their respective arrests or by the filing of pleadings before the court praying for affirmative reliefs. In her reply to the comment of the OSG, the petitioner insisted that she did not submit herself to the jurisdiction of the trial court by filing her motion to quash the Informations for lack of probable cause and to examine the witnesses before the issuance of the warrant of arrest against her. As the trial court itself held, it had not yet acquired jurisdiction over her person. In nullifying the assailed orders of the trial court, the appellate court ratiocinated as follows: To support these assigned errors, petitioner contends that the respondent Judge committed grave abuse of discretion when he granted the Motion to Withdraw Informations filed by his trial prosecutor based on the Joint Resolution of the Department of Justice and in denying petitioners motion for reconsideration. We resolve to grant this petition considering that this contention is impressed with merit. The rule, therefore, in this jurisdiction is that once a complaint or information is filed in Court, any disposition of the case as its dismissal or

the conviction or acquittal of the accused rests in the sound discretion of the Court. Although the fiscal retains the direction and control of the prosecution of criminal cases even while the case is already in Court, he cannot impose his opinion on the trial court. The Court is the best and sole judge on what to do with the case before it. The determination of the case is within its exclusive jurisdiction and competence. A motion to dismiss the case filed by the fiscal should be addressed to the Court which has the option to grant or deny the same. It does not matter if this is done before or after the arraignment of the accused or that the motion was filed after a reinvestigation or upon instructions of the Secretary of Justice who reviewed the records of the investigation (Crespo v. Mogul, 151 SCRA 462). However, if the trial court has failed to make an independent finding of the merits of the case or make an independent evaluation or assessment of the merits of the case, but merely anchored the dismissal of the case on the revised position of the prosecution, the trial court has relinquished the discretion he was duty-bound to exercise because, in effect, it is the prosecution through the Department of Justice which decides what to do and that the trial court was reduced into a mere rubber stamp, in violation of the ruling in Crespo vs. Mogul (Martinez vs. Court of Appeals, 237 SCRA 576, 577), which is the situation obtaining in this case considering that the dismissal of the criminal cases against private respondents was based solely on [the] recommendation of the Secretary of Justice because the reliance of public respondent Judge was based solely on the prosecutors averment that the Secretary of Justice had recommended the dismissal of the case against private respondent which is an abdication of the trial courts duty and jurisdiction to determine a prima facie case, in blatant violation of the courts pronouncement inCrespo vs. Mogul (Perez vs. Hagonoy Rural Bank, 327 SCRA 588). Moreover, public respondent having already issued the warrants of arrest on private respondents which, in effect, means that a probable cause exists in those criminal cases, it was an error to dismiss those cases without making an independent evaluation especially that the bases of the probable cause are the same evidence which mere made the bases of the Joint Resolution dated June 11, 2002 of the Secretary of Justice. Consequently, the dismissal order dated July 5, 2002 having been issued upon an erroneous exercise of judicial discretion, the same must have to [39] be set aside. We agree with the appellate court. In Crespo v. Mogul, the Court held that once a criminal complaint or information is filed in court, any disposition of the case or dismissal or acquittal or conviction of the accused rests within the exclusive jurisdiction, competence, and discretion of the trial court. The trial court is the best and sole judge on what to do with the case before it. A motion to dismiss the case filed by the public prosecutor should be addressed to the court who has the option to grant or deny the same. Contrary to the contention of the petitioner, the rule applies to a motion to withdraw the Information or to dismiss the case even before or after arraignment of the [41] accused. The only qualification is that the action of the court must not impair the substantial rights of the accused or the right of the People or [42] the private complainant to due process of law. When the trial court grants a motion of the public prosecutor to dismiss the case, or to quash the Information, or to withdraw the Information in compliance with the directive of the Secretary of Justice, or to deny the said motion, it does so not out of subservience to or defiance of the directive of the Secretary of [43] Justice but in sound exercise of its judicial prerogative.
[40]

B.)

In resolving a motion to dismiss the case or to withdraw the Information filed by the public prosecutor on his own initiative or pursuant to the directive of the Secretary of Justice, either for insufficiency of evidence in the possession of the prosecutor or for lack of probable cause, the trial court should not rely solely and merely on the findings of the public prosecutor or the Secretary of Justice that no crime was committed or that the evidence in the possession of the public prosecutor is insufficient to support a judgment of conviction of the accused. As the [44] Court emphasized in Martinez v. Court of Appeals, the trial court must make an independent evaluation or assessment of the merits of the case and the evidence on record of the prosecution: Secondly, the dismissal was based merely on the findings of the Acting Secretary of Justice that no libel was committed. The trial judge did not make an independent evaluation or assessment of the merits of the case. Reliance was placed solely on the conclusion of the prosecution that there is no sufficient evidence against the said accused to ascertain the allegation in the information and on the supposed lack of objection to the motion to dismiss, this last premise being, however, questionable, the prosecution having failed, as observed, to give private complainant a copy of the motion to dismiss. In other words, the grant of the motion to dismiss was based upon considerations other than the judges own personal individual conviction that there was no case against the accused. Whether to approve or disapprove the stand taken by the prosecution is not the exercise of discretion required in cases like this. The trial judge must himself be convinced that there was, indeed, no sufficient evidence against the accused, and this conclusion can be arrived at only after an assessment of the evidence in the possession of the prosecution. What was imperatively required was the trial judges own assessment of such evidence, it not being sufficient for the valid and proper exercise of judicial discretion merely to accept the prosecutions word for its supposed insufficiency. As aptly observed by the Office of the Solicitor General, in failing to make an independent finding of the merits of the case and merely anchoring the dismissal on the revised position of the prosecution, the trial judge relinquished the discretion he was duty bound to exercise. In effect, it was the prosecution, through the Department of Justice which decided what to do and not the court which was reduced to a mere rubber stamp in violation of the ruling in Crespo v. Mogul. The dismissal order having been issued in violation of private complainants right to due process as well as upon an erroneous exercise of judicial discretion, the Court of Appeals did not err in setting aside said dismissal order and remanding the case to the trial court for arraignment of petitioner as accused therein and for further proceedings. Indeed, it bears stressing that the trial court is not bound to adopt the resolution of the Secretary of Justice since it is mandated to independently evaluate or assess the merits of the case and it may either agree or disagree with the recommendation of the Secretary of Justice. Reliance alone on the resolution of the Secretary of Justice would be an abdication of the trial courts duty and jurisdiction to determine [45] a prima facie case. The trial court may make an independent assessment of the merits of the case based on the affidavits and counter-affidavits, documents, or evidence appended to the Information; the records of the public prosecutor which the court may order the latter to produce before the

court; or any evidence already adduced before the court by the accused at the time the motion is filed by the public prosecutor. In this case, the trial court failed to make an independent assessment of the merits of the cases and the evidence on record or in the possession of the public prosecutor. In granting the motion of the public prosecutor to withdraw the Informations, the trial court relied solely on the joint resolution of the Secretary of Justice, as gleaned from its assailed order: For resolution is the Motion to Withdraw Criminal Informations filed on June 21, 2002 by the Office of the City Prosecutor, this jurisdiction, to which a Comment/Opposition thereto was filed by private complainant Domingo I. Orda, Jr. on July 2, 2002. It appears that the motion is in compliance with the Joint Resolution of the Department of Justice (DOJ) promulgated on June 11, 2002 directing said Office to cause the withdrawal of the criminal informations for murder against the accused, Ligaya V. Santos, Edna Cortez, and Ronnie Ybaez, in Crim. Case No. 01-0921 (I.S. No. 01-F-2052) and against Christopher Castillo, Girlie Castillo, and Robert Bunda in Crim. Case No. 01-0425 (I.S. No. 01-H-3410), copy of which was received by this Court on June 19, 2002. The Court, after going over the Comment/Opposition filed by the private complainant, vis--vis the Joint Motion for Reconsideration of the Resolution of the DOJ, is of the firm belief and honest opinion and so holds that meanwhile that the Motion for Reconsideration of the private complainant is pending before the DOJ, justice and equity dictates that this Court has to give due course to the Motion to Withdraw the Criminal Informations, specially so that warrants for the arrest of all the accused have been issued. No injustice, prejudice, or damage will be suffered by the private complainant considering that if ever his Motion for Reconsideration will be granted by the DOJ, said criminal informations may be refiled and the principle of double jeopardy cannot be invoked by all the accused as the Court has not yet acquired jurisdiction over the persons. Upon the other hand, the warrants of arrest will serve as swords of damocles hanging over the heads of the accused if the Court will rule [47] otherwise. In granting the public prosecutors motion, the trial court abdicated its judicial power and acted as a mere surrogate of the Secretary of Justice. Worse, as gleaned from the above order, the trial court knew that the Joint Resolution of the Secretary of Justice had not yet become final and executory because the respondent, the private complainant, had filed a timely motion for the reconsideration thereof which had not yet been resolved by the Secretary of Justice. It behooved the trial court to wait for the resolution of the Secretary of Justice on the motion for reconsideration of the respondent before resolving the motion of the public prosecutor to withdraw the Informations. In fine, the trial court acted with inordinate haste. Had the trial court bothered to review its records before issuing its assailed order, it would have recalled that aside from the affidavits of Azarcon, Ernesto and Dennis, there was also the affidavit of Frias implicating the petitioner and the other accused to the killing of Francis and that it even gave credence to the testimony and affidavit of Azarcon when it denied Tonion and Sorianos petition for bail. Moreover, the trial court found probable cause against the petitioner and issued a warrant for

[46]

her arrest despite the pendency of her petition for review in the Department of Justice, only to make a complete volte face because of the Joint Resolution of the Secretary of Justice. The bare fact that the trial court had issued warrants of arrest against Santos, Cortez, the Castillo brothers, and Bunda, who were the petitioners in the Department of Justice, did not warrant an outright grant of the public prosecutors motion to withdraw the Informations. The court had already acquired jurisdiction over the cases when the Informations were filed; hence, it had jurisdiction to resolve the motion of the public prosecutor, one way or the other, on its merits. While it may be true that the accused could be incarcerated, as warrants of arrest had already been issued against them pending the resolution of the respondents motion for reconsideration, the same does not justify ignoring the rules and running roughshod over the rights of the respondent. Justice and equity is not for the accused alone; the State and the private complainant are entitled thereto, as well. Moreover, the petitioner had submitted herself to the jurisdiction of the court when she filed her motion to examine the witnesses, and suspend the proceedings and the issuance of a warrant for her arrest. The trial court committed another travesty when it denied the motion for reconsideration of its July 5, 2002 Order, on its ratiocination that In todays hearing on the Motion for Reconsideration, considering that the Public Prosecutor informed the Court that their office will no longer file any opposition thereto, the said Motion for Reconsideration is denied considering that the filing and the withdrawal of an Information is purely an executive function and the Court cannot order the refiling if the Department of Justice or the Public Prosecutors Office refuses to do so. [48] This is so because the July 5, 2002 Order of the court had not yet become final and executory when the private complainant filed her motion [49] for reconsideration of the said order. Until and unless the July 5, 2002 Order shall have become final and executory, the Informations filed with the court were not yet considered withdrawn. On the other hand, if the trial court had granted the motion for reconsideration of the respondent and set aside its July 5, 2002 Order, there would no longer be a need to refile the Informations. IN LIGHT OF ALL THE FOREGOING, the petition is DENIED DUE COURSE. The assailed Decision of the Court of Appeals is AFFIRMED. SO ORDERED. G.R. No. L-53373 June 30, 1987 MARIO FL. CRESPO, petitioner, vs. HON. LEODEGARIO L. MOGUL, Presiding Judge, CIRCUIT CRIMINAL COURT OF LUCENA CITY, 9th Judicial Dist., THE PEOPLE OF THE PHILIPPINES, represented by the SOLICITOR GENERAL, RICARDO BAUTISTA, ET AL., respondents. GANCAYCO, J.: The issue raised in this ease is whether the trial court acting on a motion to dismiss a criminal case filed by the Provincial Fiscal upon instructions of the Secretary of Justice to whom the case was elevated for review, may refuse to grant the motion and insist on the arraignment and trial on the merits.

On April 18, 1977 Assistant Fiscal Proceso K. de Gala with the approval of the Provincial Fiscal filed an information for estafa against Mario Fl. Crespo in the Circuit Criminal Court of Lucena City which was docketed as Criminal Case No. CCCIX-52 (Quezon) '77.1 When the case was set for arraigment the accused filed a motion to defer arraignment on the ground that there was a pending petition for review filed with the Secretary of Justice of the resolution of the Office of the Provincial Fiscal for the filing of the information. In an order of August 1, 1977, the presiding judge, His 2 Honor, Leodegario L. Mogul, denied the motion. A motion for reconsideration of the order was denied in the order of August 5, 1977 but the arraignment was deferred to August 18, 1977 to afford nine for 3 petitioner to elevate the matter to the appellate court. A petition for certiorari and prohibition with prayer for a preliminary writ of injunction was filed by the accused in the Court of Appeals that was 4 docketed as CA-G.R. SP No. 06978. In an order of August 17, 1977 the Court of Appeals restrained Judge Mogul from proceeding with the 5 arraignment of the accused until further orders of the Court. In a comment that was filed by the Solicitor General he recommended that the 6 petition be given due course. On May 15, 1978 a decision was rendered by the Court of Appeals granting the writ and perpetually restraining the judge from enforcing his threat to compel the arraignment of the accused in the case until the Department of Justice shall have finally resolved the 7 petition for review. On March 22, 1978 then Undersecretary of Justice, Hon.Catalino Macaraig, Jr., resolving the petition for review reversed the resolution of the Office of the Provincial Fiscal and directed the fiscal to move for 8 immediate dismissal of the information filed against the accused. A motion to dismiss for insufficiency of evidence was filed by the Provincial 9 Fiscal dated April 10, 1978 with the trial court, attaching thereto a copy of the letter of Undersecretary Macaraig, Jr. In an order of August 2, 1978 the private prosecutor was given time to file an opposition thereto. 10On November 24, 1978 the Judge denied the motion and set the arraigniment stating: ORDER For resolution is a motion to dismiss this rase filed by the procuting fiscal premised on insufficiency of evidence, as suggested by the Undersecretary of Justice, evident from Annex "A" of the motion wherein, among other things, the Fiscal is urged to move for dismissal for the reason that the check involved having been issued for the payment of a pre-existing obligation the Hability of the drawer can only be civil and not criminal. The motion's thrust being to induce this Court to resolve the innocence of the accused on evidence not before it but on that adduced before the Undersecretary of Justice, a matter that not only disregards the requirements of due process but also erodes the Court's independence and integrity, the motion is considered as without merit and therefore hereby DENIED. WHEREFORE, let the arraignment be, as it is hereby set for December 18, 1978 at 9:00 o'clock in the moming. SO ORDERED. 11 The accused then filed a petition for certiorari, prohibition and mandamus with petition for the issuance of preliminary writ of prohibition and/or temporary restraining order in the Court of Appeals that was docketed as

CA-G.R. No. SP-08777. 12 On January 23, 1979 a restraining order was issued by the Court of Appeals against the threatened act of arraignment of the accused until further orders from the Court. 13 In a decision of October 25, 1979 the Court of Appeals dismissed the petition and lifted the restraining order of January 23, 1979. 14 A motion for reconsideration of said decision filed by the accused was denied in a resolution of February 19, 1980. 15 Hence this petition for review of said decision was filed by accused whereby petitioner prays that said decision be reversed and set aside, respondent judge be perpetually enjoined from enforcing his threat to proceed with the arraignment and trial of petitioner in said criminal case, declaring the information filed not valid and of no legal force and effect, ordering respondent Judge to dismiss the said case, and declaring the obligation of petitioner as purely civil. 16 In a resolution of May 19, 1980, the Second Division of this Court without giving due course to the petition required the respondents to comment to the petition, not to file a motiod to dismiss, within ten (10) days from notice. In the comment filed by the Solicitor General he recommends that the petition be given due course, it being meritorious. Private respondent through counsel filed his reply to the comment and a separate conunent to the petition asking that the petition be dismissed. In the resolution of February 5, 1981, the Second Division of this Court resolved to transfer this case to the Court En Banc. In the resolution of February 26, 1981, the Court En Banc resolved to give due course to the petition. Petitioner and private respondent filed their respective briefs while the Solicitor General filed a Manifestation in lieu of brief reiterating that the decision of the respondent Court of Appeals be reversed and that respondent Judge be ordered to dismiss the information. It is a cardinal principle that an criminal actions either commenced by complaint or by information shall be prosecuted under the direction and control of the fiscal. 17 The institution of a criminal action depends upon the sound discretion of the fiscal. He may or may not file the complaint or information, follow or not fonow that presented by the offended party, according to whether the evidence in his opinion, is sufficient or not to establish the guilt of the accused beyond reasonable doubt. 18 The reason for placing the criminal prosecution under the direction and control of the fiscal is to prevent malicious or unfounded prosecution by private 20 persons. 19 It cannot be controlled by the complainant. Prosecuting officers under the power vested in them by law, not only have the authority but also the duty of prosecuting persons who, according to the evidence received from the complainant, are shown to be guilty of a crime 21 committed within the jurisdiction of their office. They have equally the legal duty not to prosecute when after an investigation they become convinced that the evidence adduced is not sufficient to establish a prima 22 facie case. 23 It is through the conduct of a preliminary investigation that the fiscal determines the existence of a puma facie case that would warrant the prosecution of a case. The Courts cannot interfere with the fiscal's discretion and control of the criminal prosecution. It is not prudent or even permissible for a Court to compel the fiscal to prosecute a proceeding originally initiated by him on an information, if he finds that the evidence 24 relied upon by him is insufficient for conviction. Neither has the Court any power to order the fiscal to prosecute or file an information within a certain period of time, since this would interfere with the fiscal's discretion 25 and control of criminal prosecutions. Thus, a fiscal who asks for the dismissal of the case for insufficiency of evidence has authority to do so, 26 and Courts that grant the same commit no error. The fiscal may reinvestigate a case and subsequently move for the dismissal should the re-

investigation show either that the defendant is innocent or that his guilt 27 may not be established beyond reasonable doubt. In a clash of views between the judge who did not investigate and the fiscal who did, or between the fiscal and the offended party or the defendant, those of the 28 Fiscal's should normally prevail. On the other hand, neither an injunction, preliminary or final nor a writ of prohibition may be issued by 29 the courts to restrain a criminal prosecution except in the extreme case where it is necessary for the Courts to do so for the orderly administration of justice or to prevent the use of the strong arm of the law in an op 30 pressive and vindictive manner. However, the action of the fiscal or prosecutor is not without any limitation or control. The same is subject to the approval of the provincial or city fiscal or the chief state prosecutor as the case maybe and it maybe elevated for review to the Secretary of Justice who has the power to affirm, modify or reverse the action or opinion of the fiscal. Consequently the Secretary of Justice may direct that a motion to dismiss the rase be 31 filed in Court or otherwise, that an information be filed in Court. The filing of a complaint or information in Court initiates a criminal action. The Court thereby acquires jurisdiction over the case, which is the 32 authority to hear and determine the case. When after the filing of the complaint or information a warrant for the arrest of the accused is issued by the trial court and the accused either voluntarily submited himself to the Court or was duly arrested, the Court thereby acquired jurisdiction over 33 the person of the accused. The preliminary investigation conducted by the fiscal for the purpose of determining whether a prima facie case exists warranting the prosecution of the accused is terminated upon the filing of the information in the proper court. In turn, as above stated, the filing of said information sets in motion the criminal action against the accused in Court. Should the fiscal find it proper to conduct a reinvestigation of the case, at such stage, the permission of the Court must be secured. After such reinvestigation the finding and recommendations of the fiscal should be submitted to the 34 Court for appropriate action. While it is true that the fiscal has the quasi judicial discretion to determine whether or not a criminal case should be filed in court or not, once the case had already been brought to Court whatever disposition the fiscal may feel should be proper in the rase 35 thereafter should be addressed for the consideration of the Court, The only qualification is that the action of the Court must not impair the 36 substantial rights of the accused. or the right of the People to due 36 process of law. a Whether the accused had been arraigned or not and whether it was due to a reinvestigation by the fiscal or a review by the Secretary of Justice whereby a motion to dismiss was submitted to the Court, the Court in the exercise of its discretion may grant the motion or deny it and require that the trial on the merits proceed for the proper determination of the case. However, one may ask, if the trial court refuses to grant the motion to dismiss filed by the fiscal upon the directive of the Secretary of Justice will there not be a vacuum in the prosecution? A state prosecutor to handle the case cannot possibly be designated by the Secretary of Justice who does not believe that there is a basis for prosecution nor can the fiscal be expected to handle the prosecution of the case thereby defying the superior order of the Secretary of Justice. The answer is simple. The role of the fiscal or prosecutor as We all know is to see that justice is done and not necessarily to secure the conviction of the person accused before the Courts. Thus, in spite of his opinion to the contrary, it is the duty of the fiscal to proceed with the presentation of evidence of the prosecution to the Court to enable the Court to arrive at its own independent judgment as to whether the accused should be

convicted or acquitted. The fiscal should not shirk from the responsibility of appearing for the People of the Philippines even under such circumstances much less should he abandon the prosecution of the case leaving it to the hands of a private prosecutor for then the entire 37 proceedings will be null and void. The least that the fiscal should do is to continue to appear for the prosecution although he may turn over the presentation of the evidence to the private prosecutor but still under his 38 direction and control. The rule therefore in this jurisdiction is that once a complaint or information is filed in Court any disposition of the case as its dismissal or the conviction or acquittal of the accused rests in the sound discretion of the Court. Although the fiscal retains the direction and control of the prosecution of criminal cases even while the case is already in Court he cannot impose his opinion on the trial court. The Court is the best and sole judge on what to do with the case before it. The determination of the case is within its exclusive jurisdiction and competence. A motion to dismiss the case filed by the fiscal should be addressed to the Court who has the option to grant or deny the same. It does not matter if this is done before or after the arraignment of the accused or that the motion was filed after a reinvestigation or upon instructions of the Secretary of Justice who reviewed the records of the investigation. In order therefor to avoid such a situation whereby the opinion of the Secretary of Justice who reviewed the action of the fiscal may be disregarded by the trial court, the Secretary of Justice should, as far as practicable, refrain from entertaining a petition for review or appeal from the action of the fiscal, when the complaint or information has already been filed in Court. The matter should be left entirely for the determination of the Court. WHEREFORE, the petition is DISMISSED for lack of merit without pronouncement as to costs. SO ORDERED. Mario FL. Crespo vs Hon. Leodegario L. Mogul G.R. No. L-53373 June 30, 1987

Hence this petition for review of said decision was filed by accused whereby petitioner prays that said decision be reversed and set aside, respondent judge be perpetually enjoined from enforcing his threat to proceed with the arraignment and trial of petitioner in said criminal case, declaring the information filed not valid and of no legal force and effect, ordering respondent Judge to dismiss the said case, and declaring the obligation of petitioner as purely civil. Issue: The issue raised in this ease is whether the trial court acting on a motion to dismiss a criminal case filed by the Provincial Fiscal upon instructions of the Secretary of Justice to whom the case was elevated for review, may refuse to grant the motion and insist on the arraignment and trial on the merits.

instructions of the Secretary of Justice who reviewed the records of the investigation. STA. ROSA MINING COMPANY, petitioner vs. ASSISTANT PROVINCIAL FISCAL AUGUSTO ZABALA, in his capacity as OFFICER-IN-CHARGE of the Provincial Fiscal's OFFICE of Camarines Norte, and GIL ALAPAN et. al., Respondents. virtual law library BIDIN, J.: virtual law library Mandamus to compel respondent Fiscal to prosecute Criminal Case No. 821 of the then Court of First Instance of Camarines Norte until the same is terminated.virtualawlibrary virtual law library The facts of the case are not disputed. On March 21, 1974, petitioner filed a complaint for attempted theft of materials (scrap iron) forming part of the installations on its mining property at Jose Panganiban, Camarines Norte against private respondents Romeo Garrido and Gil Alapan with the Office of the Provincial Fiscal of Camarines Norte, then headed by Provincial Fiscal Joaquin Ilustre.virtualawlibrary virtual law library The case was assigned to third Assistant Fiscal Esteban P. Panotes for preliminary investigation who, after conducting said investigation, issued a resolution dated August 26, 1974 recommending that an information for Attempted Theft be filed against private respondents on a finding of prima facie case which resolution was approved by Provincial Fiscal Joaquin Ilustre. Private respondents sought reconsideration of the resolution but the same was denied by Fiscal Ilustre in a resolution dated October 14, 1974.virtualawlibrary virtual law library On October 29, 1974, Fiscal Ilustre filed with the Court of First Instance of Camarines Norte an Information dated October 17, 1987 docketed as Criminal Case No. 821, charging private respondents with the crime of Attempted Theft.virtualawlibrary virtual law library In a letter dated October 22, 1974, the private respondents requested the Secretary of Justice for a review of the Resolutions of the Office of the Provincial Fiscal dated August 26, 1974 and October 14, 1974.virtualawlibrary virtual law library On November 6, 1974, the Chief State Prosecutor ordered the Provincial Fiscal by telegram to "Please elevate entire records PFO Case 577 against Garrido et al., review in five days and defer all proceedings pending review." virtual law library The letter-request for review was opposed by petitioner in a letter to the Secretary of Justice dated November 23, 1974 alleging, among other things, that an information for Attempted Theft had already been filed against private respondents for which reason the request for review has become a moot question as the Provincial Fiscal has lost jurisdiction to dismiss the charge for attempted theft.virtualawlibrary virtual law library On March 6, 1975, the Secretary of Justice, after reviewing the records, reversed the findings of prima facie case of the Provincial Fiscal and directed said prosecuting officer to immediately move for the dismissal of the criminal case. Petitioner sought reconsideration of the directive of the Secretary of Justice but the latter denied the same in a letter dated June 11, 1975.virtualawlibrary virtual law library A motion to dismiss dated September 16, 1975 was then filed by the Provincial Fiscal but the court denied the motion on the ground that there was a prima facie evidence against private respondents and set the case for trial on February 25, 1976.virtualawlibrary virtual law library Private respondents sought reconsideration of the court's ruling but in an Order dated February 13, 1976, the motion filed for said purpose was

Facts: On April 18, 1977 Assistant Fiscal Proceso K. de Gala with the approval of the Provincial Fiscal filed an information for estafa against Mario Fl. Crespo in the Circuit Criminal Court of Lucena City . When the case was set for arraigment the accused filed a motion to defer arraignment on the ground that there was a pending petition for review filed with the Secretary of Justice of the resolution of the Office of the Provincial Fiscal for the filing of the information. In an order of August 1, 1977, the presiding judge, His Honor, Leodegario L. Mogul, denied the motion. A motion for reconsideration of the order was denied in the order of August 5, 1977 but the arraignment was deferred to August 18, 1977 to afford time for petitioner to elevate the matter to the appellate court. Subsequently, the CA restrained Judge Mogul from proceeding with the case until the DOJ has decided on the petition for review filed by the accused. Thereafter, the Undersecretary Macaraig of the DOJ reversed the resolution of the Office of the Provincial Fiscal and directed the fiscal to move for immediate dismissal of the information filed against the accused. A motion to dismiss for insufficiency of evidence was filed by the Provincial Fiscal dated April 10, 1978 with the trial court, attaching thereto a copy of the letter of Undersecretary Macaraig, Jr. In an order of August 2, 1978 the private prosecutor was given time to file an opposition thereto. The Judge then denied the motion and set the arraignment.

Held: It is a cardinal principle that a criminal actions either commenced by complaint or by information shall be prosecuted under the direction and control of the fiscal. The institution of a criminal action depends upon the sound discretion of the fiscal. He may or may not file the complaint or information, follow or not follow that presented by the offended party, according to whether the evidence in his opinion, is sufficient or not to establish the guilt of the accused beyond reasonable doubt. The reason for placing the criminal prosecution under the direction and control of the fiscal is to prevent malicious or unfounded prosecution by private persons. It cannot be controlled by the complainant. Prosecuting officers under the power vested in them by law, not only have the authority but also the duty of prosecuting persons who, according to the evidence received from the complainant, are shown to be guilty of a crime committed within the jurisdiction of their office. They have equally the legal duty not to prosecute when after an investigation they become convinced that the evidence adduced is not sufficient to establish a prima facie case. However, the action of the fiscal or prosecutor is not without any limitation or control. The same is subject to the approval of the provincial or city fiscal or the chief state prosecutor as the case maybe and it maybe elevated for review to the Secretary of Justice who has the power to affirm, modify or reverse the action or opinion of the fiscal. Consequently the Secretary of Justice may direct that a motion to dismiss the rase be filed in Court or otherwise, that an information be filed in Court. The filing of a complaint or information in Court initiates a criminal action. The Court thereby acquires jurisdiction over the case, which is the authority to hear and determine the case. When after the filing of the complaint or information a warrant for the arrest of the accused is issued by the trial court and the accused either voluntarily submited himself to the Court or was duly arrested, the Court thereby acquired jurisdiction over the person of the accused. The rule therefore in this jurisdiction is that once a complaint or information is filed in Court any disposition of the case as its dismissal or the conviction or acquittal of the accused rests in the sound discretion of the Court. Although the fiscal retains the direction and control of the prosecution of criminal cases even while the case is already in Court he cannot impose his opinion on the trial court. The Court is the best and sole judge on what to do with the case before it. The determination of the case is within its exclusive jurisdiction and competence. A motion to dismiss the case filed by the fiscal should be addressed to the Court who has the option to grant or deny the same. It does not matter if this is done before or after the arraignment of the accused or that the motion was filed after a reinvestigation or upon

likewise denied. Trial of the case was reset to April 23, 1976.virtualawlibrary virtual law library Thereafter, Fiscal Ilustre was appointed a judge in the Court of First Instance of Albay and respondent Fiscal Zabala became officer-in-charge of the Provincial Fiscal's Office of Camarines Norte.virtualawlibrary virtual law library On April 19, 1976, respondent Fiscal filed a Second Motion to Dismiss the case. This second motion to dismiss was denied by the trial court in an order dated April 23, 1976. Whereupon, respondent fiscal manifested that he would not prosecute the case and disauthorized any private prosecutor to appear therein. Hence, this petition for mandamus.virtualawlibrary virtual law library In this action, petitioner prays for the issuance of the writ of mandamus "commanding respondent fiscal or any other person who may be assigned or appointed to act in his place or stead to prosecute Criminal Case No. 821 of the Court of First instance of Camarines Norte" (Petition, Rollo, p. 27).virtualawlibrary virtual law library There is no question that the institution of a criminal action is addresses to the sound discretion of the investigating fiscal. He may or he may not file the information according to whether the evidence is in his opinion sufficient to establish the guilt of the accused beyond reasonable doubt. (Gonzales vs. Court of First Instance, 63 Phil. 846) and when he decides not to file the information, in the exercise of his discretion, he may not be compelled to do so (People vs. Pineda, 20 SCRA 748). However, after the case had already been filed in court, "fiscals are not clothed with power, without the consent of the court, to dismiss or nolle prosequi criminal actions actually instituted and pending further proceedings. The power to dismiss criminal actions is vested solely in the court" (U.S. vs. Barredo, 32 Phil. 444, 450; Gonzales vs. Court of First Instance, supra). However, the matter of instituting an information should be distinguished from a motion by the fiscal for the dismissal of a case already filed in court. The judge may properly deny the motion where, judging from the record of the preliminary investigation, there appears to be sufficient evidence to sustain the prosecution. This is, as it should be, because the case is already in court and, therefore, within its discretion and control (Abela vs. Golez, 131 SCRA 12). This ruling is just being consistent with the principle first laid down in U.S. vs. Valencia (1 Phil. 642) where it was held that "after the complaint has been presented, and certainly after the trial has been commenced, the court and not the fiscal has full control of it. The complaint cannot be withdrawn by the fiscal without the consent of the court." It is discretionary on the court where the case is pending to grant the motion to dismiss or deny the same (Asst. Provincial Fiscal of Bataan vs. Dollete, 103 Phil. 914).virtualawlibrary virtual law library In the case at bar, the court below denied the fiscal's motion to dismiss on the ground that there was a prima facie case against private respondents. The question presented for determination now is-after a case has been filed in court, can a fiscal be compelled to prosecute the same, after his motion to dismiss it has been denied? virtual law library This court is of the view that the writ prayed for should issue. Notwithstanding his personal convictions or opinions, the fiscal must proceed with his duty of presenting evidence to the court to enable the court to arrive at its own independent judgment as to the culpability of the accused. The fiscal should not shirk from his responsibility much less leave the prosecution of the case at the hands of a private prosecutor. At all times, the criminal action shall be prosecuted under his direction and

control (Sec. 4, Rule 110, Rules of Court). Otherwise, the entire proceedings wig be null and void (People vs. Beriales, 70 SCRA 361).virtualawlibrary virtual law library In the trial of criminal cases, it is the duty of the public prosecutor to appear for the government since an offense is an outrage to the sovereignty of the State." (Moran, Comments on the Rules of Court, Vol. IV, 1980 Ed., p. 10). This is so because "the prosecuting officer is the representative not of an ordinary party to a controversy but of a sovereignty where obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the two-fold aim of which is that guilt shall not escape or innocence suffer (Suarez vs. Platon, 69 Phil. 556).virtualawlibrary virtual law library Accordingly, if the fiscal is not at all convinced that a prima facie case exists, he simply cannot move for the dismissal of the case and, when denied, refuse to prosecute the same. He is obliged by law to proceed and prosecute the criminal action. He cannot impose his opinion on the trial court. At least what he can do is to continue appearing for the prosecution and then turn over the presentation of evidence to another fiscal or a private prosecutor subject to his direction and control (U.S. vs. Despabiladeras, 32 Phil. 442; U.S. vs. Gallegos, 37 Phil. 289). Where there is no other prosecutor available, he should proceed to discharge his duty and present the evidence to the best of his ability and let the court decide the merits of the case on the basis of the evidence adduced by both parties.virtualawlibrary virtual law library The mere fact that the Secretary of Justice had, after reviewing the records of the case, directed the prosecuting fiscal to move for the dismissal of the case and the motion to dismiss filed pursuant to said directive is denied by the trial court, is no justification for the refusal of the fiscal to prosecute the case. It is the court where the case is filed and not the fiscal that has full control of it. Very recently, this Court in Mario Fl. Crespo vs. Hon. Leodegario L. Mogul (G.R. No. 53373, promulgated June 30, 1987) ruled: The rule therefore in this jurisdiction is that once a complaint or information is filed in Court any disposition of the case as its dismissal or the conviction or acquittal of the accused rests in the sound discretion of the Court. Although the fiscal retains the direction and control of the prosecution of criminal cases even while the case is already in Court, he cannot impose his opinion on the trial court. The Court is the best and sole judge on what to do with the case before it. The determination of the case is within its exclusive jurisdiction and competence. A motion to dismiss the case filed by the fiscal should be addressed to the Court who has the option to grant or deny the same. It does not matter if this is done before or after the arraignment of the accused or that the motion was filed after a reinvestigation or upon instructions of the Secretary of Justice who reviewed the records of the investigation.virtualawlibrary virtual law library In order therefore to avoid such a situation whereby the opinion of the Secretary of Justice who reviewed the action of the fiscal may be disregarded by the trial court, the Secretary of Justice should, as far as practicable, refrain from entertaining a petition for

review or appeal from the action of the fiscal, when the complaint or information has already been filed in Court. The matter should be left entirely for the determination of the Court. WHEREFORE, petition is hereby Granted. Public respondent or any other person who may be assigned or appointed to act in his place or stead, is hereby ordered to continue prosecuting Criminal Case No. 821 until the same is terminated.virtualawlibrary virtual law library SO ORDERED. [G.R. No. 113216. September 5, 1997] RHODORA M. LEDESMA, Petitioner, vs. COURT OF APPEALS and HON. MAXIMIANO C. ASUNCION, in his capacity as Presiding Judge of RTC, Quezon City, Respondents. DECISION PANGANIBAN, J.: When confronted with a motion to withdraw an information on the ground of lack of probable cause based on a resolution of the secretary of justice, the bounden duty of the trial court is to make an independent assessment of the merits of such motion. Having acquired jurisdiction over the case, the trial court is not bound by such resolution but is required to evaluate it before proceeding further with the trial. While the secretarys ruling is persuasive, it is not binding on courts. A trial court, however, commits reversible error or even grave abuse of discretion if it refuses/neglects to evaluate such recommendation and simply insists on proceeding with the trial on the mere pretext of having already acquired jurisdiction over the criminal action. This principle is explained in this Decision resolving a petition for review on certiorari of the Decision1 of the Court of 2 Appeals, promulgated on September 14, 1993 in CA-G.R. SP No. 30832 which in effect affirmed an order of the Regional Trial Court of Quezon City denying the prosecutions withdrawal of a criminal information against petitioner. The Antecedent Facts From the pleadings submitted in this case, the undisputed facts are as follows: Sometime in April 1992, a complaint for libel was filed by Dr. Juan F. Torres, Jr. against Dr. Rhodora M. Ledesma, petitioner herein, before the Quezon City Prosecutors Office, docketed as I.S. No. 92-5433A. Petitioner filed her counter-affidavit to the complaint. Finding sufficient legal and factual basis, the Quezon City Prosecutors Office filed on July 6, 1992 an Information for libel against petitioner with the Regional Trial Court of Quezon City, Branch 104.3 The Information filed by Assistant City Prosecutor Augustine A. Vestil reads: 4chanroblesvirtuallawlibrary That on or about the 27th day of June 1991, in Quezon City, Metro Manila, Philippines, the said accused, acting with malice, did, then and there, wilfully, unlawfully and feloniously send a letter addressed to Dr. Esperanza I. Cabral, Director of Philippine Heart Center, East Avenue, this city, and furnished the same to other officers of the said hospital, said letter containing slanderous and defamatory remarks against DR. JUAN F. TORRES, JR., which states in part, to wit: 27June 1991 Dr. Esperanza I. Cabral

Director Subject: Return of all professional fees due Dr. Rhodora M. Ledesma, Nuclear Medicine Specialist/Consultant, Philippine Heart Center, from January 31, 1989 to January 31, 1991. Respondents: Dr. Juan F. Torres, Jr., Chief, Nuclear Medicine Section Dr. Orestes P. Monzon, Staff Consultant Dear Dr. Cabral, This is to demand the return of all professional fees due me as a consultant in Nuclear Medicine, this Center, since January 31, 1989 until my resignation effective January 31, 1991, amounting to at least P100,000.00 for the year 1990 alone. Records in the Nuclear Medicine Section will show that from January 1989 to January 1991, a total of 2,308 patients were seen. Of these, I had officially supervised, processed, and interpreted approximately a total of 1,551 cases as against approximately 684 and 73 cases done by Dr. Monzon and Dr. Torres respectively. Until my resignation I had received a monthly share of professional fees averaging P1,116.90/month supposedly representing 20% of the total monthly professional fees. The rest were divided equally between Dr. Monzon and Dr. Torres. There was never any agreement between us three consultants that this should be the arrangement and I am certain that this was not with your approval. The burden of unfairness would have been lesser if there was an equal distribution of labor and the schedule of duties were strictly followed. As it was, the schedule of duties submitted monthly to the office of the Asst. Director for Medical Services was simply a dummy to comply with administrative requirements rather than a guideline for strict compliance. Both consultants have complete daily time records even if they did not come regularly. Dr. Torres came for an hour every week, Dr. Monzon came sporadically during the week while I was left with everything from training the residents and supervising the Techs to processing and interpreting the results on a regular basis. I had a part time appointment just like Dr. Monzon and Dr. Torres. In the interest of fairness and to set a precedent for the protection of future PHC Nuclear Medicine Alumni I am calling your attention to the unfair and inhuman conditions I went through as a Consultant in that Section. I trust that your sense of professionalism will put a stop to this corruption. I suggest that a committee be formed to make an audit of the distribution of professional fees in this Section. At this point, let me stress that since professional fees vary according to the type of procedure done and since there was no equity of labor between us I am not settling for an equal percentage share. I demand that I be indemnified of all professional fees due me on a case to case basis. Let me make clear my intention of pursuing this matter legally should there be no favorable action in my behalf. Let me state at this point6 that the actions of Dr. Torres and Dr. Monzon are both unprofessional and unbecoming and are clearly violating the

code of ethics of the medical profession and the Philippine Civil Service Rules and Regulations related to graft and corruption. Thank you. and other words of similar import, when in truth and in fact, as the accused very well knew, the same are entirely false and untrue but were publicly made for no other purpose than to expose said DR. JUAN F. TORRES, JR. to public ridicule, thereby casting dishonor, discredit and contempt upon the person of the said offended party, to his damage and prejudice. A petition for review of the resolution of Assistant City Prosecutor Vestil was filed by petitioner before the Department of Justice pursuant to P.D. No. 77 as amended by P.D. No. 911. The Department of Justice gave due course to the petition and directed the Quezon City prosecutor to move for deferment of further proceedings and to elevate the entire records of the case.5 Accordingly, a Motion to Defer Arraignment dated September 7, 1992 was filed by Prosecutor Tirso M. Gavero before the court a quo.6 On September 9, 1992, the trial court granted the motion and deferred petitioners arraignment until the final termination of the petition for review.7chanroblesvirtuallawlibrary Without the consent or approval of the trial prosecutor, private complainant, through counsel, filed a Motion to Lift the Order dated September 9, 1992 and to Set the Case for Arraignment/Trial.8chanroblesvirtuallawlibrary On January 8, 1993, the trial court issued an Order setting aside its earlier Order of September 9, 1992 and scheduling petitioners arraignment on January 18, 1993 at two oclock in the afternoon.9chanroblesvirtuallawlibrary In a resolution dated January 27, 1993, then Justice Secretary Franklin M. Drilon reversed the Quezon City investigating prosecutor. Pertinent portions of Drilons ruling read:10chanroblesvirtuallawlibrary From the circumstances obtaining, the subject letter was written to bring to the attention of the Director of the Philippine Heart Center for Asia and other responsible authorities the unjust and unfair treatment that Dr. Ledesma was getting from complainants. Since complainants and respondent are government employees, and the subject letter is a complaint to higher authorities of the PHCA on a subject matter in which respondent has an interest and in reference to which she has a duty to question the same is definitely privileged (US vs. Bustos, 37 Phil. 131). Moreover, in Ang vs. Castro, 136 SCRA 455, the Supreme Court, citing Santiago vs. Calvo, 48 Phil. 922, ruled that A communication made in good faith upon any subject matter in which the party making the communication has an interest or concerning which he has a duty is privileged... although it contains incriminatory or derogatory matter which, without the privilege, would be libelous and actionable. The follow-up letter sent by respondent to the director of the PHCA, is a direct evidence of respondents righteous disposition of following the rule of law and is a clear indication that her purpose was to seek relief from the proper higher authority who is the Director of PHCA.

The same interpretation should be accorded the civil and administrative complaints which respondent filed against complainants. They are mere manifestations of her earnest desire to pursue proper relief for the alleged injustice she got from complainants. If she was motivated by malice and ill-will in sending the subject communication to the Director of the PHCA, she would not have sent the second letter and filed the administrative and civil cases against complainants. Moreover, it is unbelievable that it took complainants one year to realize that the questioned letter subjected them to public and malicious imputation of a vice or omission. It is beyond the ordinary course of human conduct for complainants to start feeling the effects of the alleged libelous letter - that of experiencing sleepless nights, wounded feelings, serious anxiety, moral shock and besmirched reputation - one year after they read the communication in question. The claim that the case of Crespo vs. Mogul, 151 SCRA 462 is applicable to the instant case is unfounded. In the first place, the instant cases are not being reinvestigated. It is the resolutions of the investigating prosecutor that are under review. Further, the record shows that the court has issued an order suspending the proceedings pending the resolutions of the petitions for review by this Office. In the issuance of its order, the court recognizes that the Secretary of Justice has the powerand authority to review theresolutions of prosecutors who are under his control and supervision. In view of the foregoing, the appealed resolutions are hereby reversed. You are directed to withdraw the Informations which you filed in Court. Inform this Office of the action taken within ten (10) days from receipt hereof. In obedience to the above directive, Quezon City Trial Prosecutor Tirso M. Gavero filed a Motion to Withdraw Information dated February 17,1993,11 attaching thereto the resolution of Secretary Drilon. The trial judge denied this motion in his Order dated February 22, 1993, as follows:12chanroblesvirtuallawlibrary The motion of the trial prosecutor to withdraw the information in the above-entitled case is denied. Instead, the trial prosecutor of this court is hereby directed to prosecute the case following the guidelines and doctrine laid down by the Supreme Court in the case of Crespo vs. Mogul, 151 SCRA 462. Petitioners motion for reconsideration13 was denied by the trial judge in the Order dated March 5, 1993, as follows:14chanroblesvirtuallawlibrary Finding no cogent reason to justify the reconsideration of the ruling of this Court dated February 22, 1993, the Motion for Reconsideration dated March 1, 1993 filed by the accused through counsel is hereby denied. Aggrieved, petitioner filed a petition for certiorari and prohibition with the Supreme Court. In a Resolution dated March 31, 1993, this Court referredthe case to the Court of Appeals for proper determination and disposition pursuant to Section 9, paragraph 1 of B.P. 129.15chanroblesvirtuallawlibrary Respondent Court dismissed the petition for lack of merit, holding that it had no jurisdiction to overturn the doctrine laid down in Crespo vs. Mogul -- once a complaint or information has

been filed in court, any disposition of the case,i.e., dismissal, conviction or acquittal of the accused, rests on the sound discretion of the trial court.16chanroblesvirtuallawlibrary Hence, this recourse to this Court. The Issues For unexplained reasons, petitioner failed to make an assignment of errors against the appellate court. Her counsel merely repeated the alleged errors of the trial court: 17chanroblesvirtuallawlibrary I. The Orders, dated February 22, 1993 and March 5, 1993, of respondent Judge Asuncion relied solely on the Crespo vs. Mogul (151 SCRA 462) decision. It is respectfully submitted that said case is not applicable because: 1. It infringes on the constitutional separation of powers between the executive and judicial branches of the government; 2. It constitutes or it may lead to misuse or misapplication of judicial power as defined in the Constitution; 3. It goes against the constitutional proscription that rules of procedure should not diminish substantive rights; 4. It goes against the principle of non-delegation of powers; 5. It sets aside or disregards substantive and procedural rules; 6. It deprives a person of his constitutional right to procedural due process; 7. Its application may constitute or lead to denial of equal protection of laws; 8. It deprives the secretary of justice or the president of the power to control or review the acts of a subordinate official; 9. It will lead to, encourage, abet or promote abuse or even corruption among the ranks of investigating fiscals; 10. It does not subserve the purposes of a preliminary investigation because (10.a) It subjects a person to the burdens of an unnecessary trial, specially in cases where the investigating fiscal recommends no bail for the accused; (10.b) It subjects the government, both the executive and the judiciary, to unnecessary time and expenses attendant to an unnecessary trial; (10.c) It contributes to the clogging of judicial dockets; and 11. It has no statutory or procedural basis or precedent. II. On the assumption that Crespo vs. Mogul is applicable, it is submitted that 1. Respondent Judge Asuncion committed grave abuse of discretion, amounting to lack of jurisdiction, when he denied the Motion to Withdraw Information since he had already deferred to, if not recognized, the authority of the Secretary of Justice; and 2. The facts in Crespo vs. Mogul are different from the instant case. Hence, respondent Judge Asuncion committed grave abuse of discretion, amounting to lack of jurisdiction, when he relied solely on said case in denying the Motion to Withdraw Information. In sum, the main issue in this petition is: Did Respondent Court commit any reversible error in affirming the trial courts denial of the prosecutions Motion to Withdraw Information? The Courts Ruling

The petition is impressed with merit. We answer the above question in the affirmative. Preliminary Matter Before discussing the substance of this case, the Court will preliminarily address a procedural matter. Prior to the effectivity of the 1997 Rules of Civil Procedure on July 1, 1997, Section 2 of Rule 45, which governed appeals from the Court of Appeals to the Supreme Court, provided: SEC. 2. Contents of petition.The petition shall contain a concise statement of x x x the assignment of errors made in the court below x x x. A petition for review on certiorari under Rule 45 requires a concise statement of the errors committed by the Court of Appeals, not of the trial court. For failure to follow this Rule, the petition could have been dismissed by this Courtmotu proprio, considering that under Section 4 of the same Rule, review is not a matter of right but of sound discretion. We take this occasion to stress the need for precision and clarity in the assignment of errors. Review under this rule is unlike an appeal in a criminal case where the death penalty, reclusin perpetua or life imprisonment is imposed and where the whole case is opened for review. Under Rule 45, only the issues raised therein by the petitioner will be passed upon by the Court, such that an erroneous specification of the issues may cause the dismissal of the petition. We stressed this in Circular No. 2-90, entitled Guidelines to be Observed in Appeals to the Court of Appeals and to the Supreme Court, as follows: 4. Erroneous Appeals. x x x x e) Duty of counsel.It is therefore incumbent upon every attorney who would seek review of a judgment or order promulgated against his client to make sure of the nature of the errors he proposes to assign, whether these be of fact or of law; then upon such basis to ascertain carefully which Court has appellate jurisdiction; and finally, to follow scrupulously the requisites for appeal prescribed by law, ever aware that any error or imprecision in compliance may well be fatal to his clients cause. FOR STRICT COMPLIANCE. Be that as it may, the Court noting the importance of the substantial matters raised decided to overlook petitioners lapse and granted due course to the petition per Resolution dated July 15, 1996, with a warning that henceforth petitions which fail to specify an assignment of errors of the proper lower court may be denied due course motu proprio by this Court. Determination of Probable Cause Is an Executive Function The determination of probable cause during a preliminary investigation is judicially recognized as an executive function and is made by the prosecutor. The primary objective of a preliminary investigation is to free a respondent from the inconvenience, expense, ignominy and stress of defending himself/herself in the course of a formal trial, until the reasonable probability of his or her guilt has been passed upon in a more or less summary proceeding by a competent officer designated by law for that purpose. Secondarily, such summary proceeding also protects the state from the burden of unnecessary expense and effort in prosecuting alleged offenses

and in holding trials arising from false, frivolous or groundless charges.18chanroblesvirtuallawlibrary Such investigation is not a part of the trial. A full and exhaustive presentation of the parties evidence is not required, but only such as may engender a well-grounded belief that an offense has been committed and that the accused is probably guilty thereof.19 By reason of the abbreviated nature of preliminary investigations, a dismissal of the charges as a result thereof is not equivalent to a judicial pronouncement of acquittal. Hence, no double jeopardy attaches. In declaring this function to be lodged in the prosecutor, the Court distinguished the determination of probable cause for the issuance of a warrant of arrest or a search warrant from a preliminary investigation proper in this wise:20chanroblesvirtuallawlibrary xxx Judges and prosecutors alike should distinguish the preliminary inquiry which determines probable cause for the issuance of a warrant of arrest from a preliminary investigation proper which ascertains whether the offender should be held for trial or released. xxx The determination of probable cause for the warrant of arrest is made by the Judge. The preliminary investigation proper--whether xxx there is reasonable ground to believe that the accused is guilty of the offense charged and, therefore, whether xxx he should be subjected to the expense, rigors and embarrassment of trial--is the function of the prosecutor. We reiterate that preliminary investigation should be distinguished as to whether it is an investigation for the determination of a sufficient ground for the filing of the information or it is an investigation for the determination of a probable cause for the issuance of a warrant of arrest. The first kind of preliminary investigation is executive in nature. It is part of the prosecutors job. The second kind of preliminary investigation which is more properly called preliminary examination is judicial in nature and is lodged with the judge. Sound policy supports this distinction. Otherwise, judges would be unduly laden with the preliminary examination and investigation of criminal complaints instead of concentrating on hearing and deciding cases filed before their courts. The Separate Opinion of Mr. Chief Justice Andres R. Narvasa in Roberts, Jr. vs. Court of Appeals stressed that the determination of the existence of probable cause properly pertains to the public prosecutor in the established scheme of things, and that the proceedings therein are essentially preliminary, prefatory and cannot lead to a final, definite and authoritative judgment of the guilt or innocence of the persons charged with a felony or a crime.21chanroblesvirtuallawlibrary In Crespo vs. Mogul,22 the Court emphasized the cardinal principle that the public prosecutor controls and directs the prosecution of criminal offenses thus: It is a cardinal principle that all criminal actions either commenced by complaint or by information shall be prosecuted under the direction and control of the fiscal. The institution of a criminal action depends upon the sound discretion of the fiscal. He may or may not file the complaint or information, follow or

not follow that presented by the offended party, according to whether the evidence in his opinion, is sufficient or not to establish the guilt of the accused beyond reasonable doubt. The reason for placing the criminal prosecution under the direction and control of the fiscal is to prevent malicious or unfounded prosecution by private persons. It cannot be controlled by the complainant. Prosecuting officers under the power vested in them by law, not only have the authority but also the duty of prosecuting persons who, according to the evidence received from the complainant, are shown to be guilty of a crime committed within the jurisdiction of their office. They have equally the legal duty not to prosecute when after an investigation they become convinced that the evidence adduced is not sufficient to establish a prima facie case. In the same case, the Court added that where there is a clash of views between a judge who did not investigate and a fiscal who conducted a reinvestigation, those of the prosecutor should normally prevail:23chanroblesvirtuallawlibrary x x x x The Courts cannot interfere with the fiscals discretion and control of the criminal prosecution. It is not prudent or even permissible for a Court to compel the fiscal to prosecute a proceeding originally initiated by him on an information, if he finds that the evidence relied upon by him is insufficient for conviction. Neither has the Court any power to order the fiscal to prosecute or file an information within a certain period of time, since this would interfere with the fiscals discretion and control of criminal prosecutions. Thus, a fiscal who asks for the dismissal of the case for insufficiency of evidence has authority to do so, and Courts that grant the same commit no error. The fiscal may re-investigate a case and subsequently move for the dismissal should the re-investigation show either that the defendant is innocent or that his guilt may not be established beyond reasonable doubt. In a clash of views between the judge who did not investigate and the fiscal who did, or between the fiscal and the offended party or the defendant, those of the fiscals should normally prevail. x x x x. Appeal as an Exercise of the Justice Secretarys Power of Control Over Prosecutors Decisions or resolutions of prosecutors are subject to appeal to the secretary of justice who, under the Revised Administrative Code, exercises the power of direct control and supervision over said prosecutors; and who may thus affirm, nullify, reverse or modify their rulings. Section 39, Chapter 8, Book IV in relation to Section 5, 8, and 9, Chapter 2, Title III of the Code gives the secretary of justice supervision and control over the Office of the Chief Prosecutor and the Provincial and City Prosecution Offices. The scope of his power of supervision and control is delineated in Section 38, paragraph 1, Chapter 7, Book IV of the Code: (1) Supervision and Control. Supervision and control shall include authority to act directly whenever a specific function is entrusted by law or regulation to a subordinate; direct the performance of duty; restrain the commission of acts; review, approve, reverse or modify acts and decisions of subordinate officials orunits; xxxx.

Supplementing the aforequoted provisions are Section 3 of R.A. 3783 and Section 37 of Act 4007, which read: Section 3. x x x x The Chief State Prosecutor, the Assistant Chief State Prosecutors, the Senior State Prosecutors, and the State Prosecutors shall x x x perform such other duties as may be assigned to them by the Secretary of Justice in the interest of public service. xxx xxx xxx Section 37. The provisions of the existing law to the contrary notwithstanding, whenever a specific power, authority, duty, function, or activity is entrusted to a chief of bureau, office, division or service, the same shall be understood as also conferred upon the proper Department Head who shall have authority to act directly in pursuance thereof, or to review, modify, or revoke any decision or action of said chief of bureau, office, division or service. Supervision and control of a department head over his subordinates have been defined in administrative law as follows:24chanroblesvirtuallawlibrary In administrative law supervision means overseeing or the power or authority of an officer to see that subordinate officers perform their duties. If the latter fail or neglect to fulfill them, the former may take such action or step as prescribed by law to make them perform such duties. Control, on the other hand, means the power of an officer to alter or modify or nullify or set aside what a subordinate officer had done in the performance of his duties and to substitute the judgment of the former for that of the latter. Review as an act of supervision and control by the justice secretary over the fiscals and prosecutors finds basis in the doctrine of exhaustion of administrative remedies which holds that mistakes, abuses or negligence committed in the initial steps of an administrative activity or by an administrative agency should be corrected by higher administrative authorities, and not directly by courts. As a rule, only after administrative remedies are exhausted may judicial recourse be allowed. Appeal to the Secretary of Justice Is Not Foreclosed by the Ruling in Crespo In Marcelo vs. Court of Appeals,25 the Court clarified that Crespo26 did not foreclose the power or authority of the secretary of justice to review resolutions of his subordinates in criminal cases. The Court recognized in Crespo that the action of the investigating fiscal or prosecutor in the preliminary investigation is subject to the approval of the provincial or city fiscal or chief state prosecutor. Thereafter, it may be appealed to the secretary of justice. The justice secretarys power of review may still be availed of despite the filing of an information in court. In his discretion, the secretary may affirm, modify or reverse resolutions of his subordinates pursuant to Republic Act No. 5180, as amended,27 specifically in Section 1 (d): (d) x x x Provided, finally, That where the resolution of the Provincial or City Fiscal or the Chief State Prosecutor is, upon review, reversed by the Secretary of Justice, the latter may,

where he finds that no prima facie case exists, authorize and direct the investigating fiscal concerned or any other fiscal or state prosecutor to cause or move for the dismissal of the case, or, where he finds a prima facie case, to cause the filing of an information in court against the respondent, based on the samesworn statements or evidencesubmittedwithout the necessity of conducting another preliminary investigation. Pursuant thereto, the Department of Justice promulgated Circular No. 7 dated January 25, 1990 governing appeals in preliminary investigation. Appeals under Section 2 are limited to resolutions dismissing a criminal complaint. However, Section 4 provides an exception: appeals from resolutions finding probable cause upon a showing of manifest error or grave abuse of discretion are allowed, provided the accused has not been arraigned. In the present case, petitioners appeal to the secretary of justice was given due course on August 26, 1992 pursuant to this Circular. On June 30, 1993, Circular No. 7 was superseded by Department Order No. 223; however, the scope of appealable cases remained unchanged: SECTION 1. What May Be Appealed. -- Only resolutions of the Chief State Prosecutor/Regional State Prosecutor/Provincial or City Prosecutor dismissing a criminal complaint may be the subject of an appeal to the Secretary of Justice except as otherwise provided in Section 4 hereof. Appeals from the resolutions of provincial/city prosecutors where the penalty prescribed for the offense charged does not exceed prisin correccional, regardless of the imposable fine, shall be made to the Regional State Prosecutors who shall resolve the appeals with finality, pursuant to Department Order No. 318 dated August 28, 1991 as amended by D.O. No. 34 dated February 4, 1992, D.O. No. 223 dated August 11, 1992 and D.O. No. 45 dated February 2, 1993. Such appeals shall also be governed by these rules. SEC. 4. Non-Appealable Cases; Exceptions.--No appeal may be taken from a resolution of the Chief State Prosecutor/Regional State Prosecutor/Provincial or City Prosecutor finding probable cause except upon showing of manifest error or grave abuse of discretion. Notwithstanding the showing of manifest error or grave abuse of discretion, no appeal shall be entertained where the appellant had already been arraigned. If the appellant (is) arraigned during the pendency of the appeal, x x x appeal shall be dismissed motu proprio by the Secretary of Justice. An appeal/motion for reinvestigation from a resolution finding probable cause, however, shall not hold the filing of the information in court. Apart from the foregoing statutory and administrative issuances, the power of review of the secretary of justice is recognized also by Section 4 of Rule 112 of the Rules of Court: SEC. 4. Duty of investigating fiscal.--x x x x xxx xxx xxx If upon petition by a proper party, the Secretary of Justice reverses the resolution of the provincial or city fiscal or chief state prosecutor, he shall direct the fiscal concerned to file the corresponding information without conducting another

preliminary investigation or to dismiss or move for dismissal of the complaint or information. This appeal rests upon the sound discretion of the secretary of justice arising from his power of supervision and control over the prosecuting arm of the government, not on a substantial right on the part of the accused as claimed by petitioner. Appeal Did Not Divest the Trial Court of Jurisdiction Where the secretary of justice exercises his power of review only after an information has been filed, trial courts should defer or suspend arraignment and further proceedings until the appeal is resolved. Such deferment or suspension, however, does not signify that the trial court is ipso facto bound by the resolution of the secretary of justice. Jurisdiction, once acquired by the trial court, is not lost despite a resolution by the secretary of justice to withdraw the information or to dismiss the case. Judicial Review of the Resolution of the Secretary of Justice Judicial power is defined under the 1987 Constitution as the duty of courts to settle actual controversies involving rights which are legally demandable and enforceable. Such power includes the determination of whether there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the government.28 Under this definition, a court is without power to directly decide matters over which full discretionary authority has been delegated to the legislative or executive branch of the government. It is not empowered to substitute its judgment for that of Congress or of the President. It may, however, look into the question of whether such exercise has been made in grave abuse of discretion. Judicial review of the acts of other departments is not an assertion of superiority over them or a derogation of their functions. In the words of Justice Laurel in Angara vs. Electoral Commission:29chanroblesvirtuallawlibrary x x x [W]hen the judiciary mediates to allocate constitutional boundaries, it does not in reality nullify or invalidate an act of the legislature, but only asserts the solemn and sacred obligation assigned to it by the Constitution to determine conflicting claims of authority under the Constitution and to establish for the parties in an actual controversy the rights which that instrument sources and guarantees to them. This is in truth all that is involved in what is termed judicial supremacy which properly is the power of the judicial review under the Constitution. x x x. It is not the purpose of this Court to decrease or limit the discretion of the secretary of justice to review the decisions of the government prosecutors under him. In Crespo, the secretary was merely advised to restrict such review to exceptionally meritorious cases. Rule 112, Section 4 of the Rules of Court, which recognizes such power, does not, however, allow the trial court to automatically dismiss the case or grant the withdrawal of the information upon the resolution of the secretary of justice. This is precisely the import of Crespo, Marcelo, Martinez vs. Court of Appeals30 and the recent case of Roberts, Jr. vs. Court of Appeals, which all required the trial court to make its own evaluation of the merits of the case, because granting the motion to dismiss or to withdraw the information is equivalent to effecting a disposition of the case itself.

The Marcelo and Martinez Cases Are Consistent In Marcelo vs. Court of Appeals,31 this Court ruled that, although it is more prudent to wait for a final resolution of a motion for review or reinvestigation from the secretary of justice before acting on a motion to dismiss or a motion to withdraw an information, a trial court nonetheless should make its own study and evaluation of said motion and not rely merely on the awaited action of the secretary. The trial court has the option to grant or deny the motion to dismiss the case filed by the fiscal, whether before or after the arraignment of the accused, and whether after a reinvestigation or upon instructions of the secretary who reviewed the records of the investigation; provided that such grant or denial is made from its own assessment and evaluation of the merits of the motion. In Martinez vs. Court of Appeals,32 this Court overruled the grant of the motion to dismiss filed by the prosecuting fiscal upon the recommendation of the secretary of justice because such grant was based upon considerations other than the judges own assessment of the matter. Relying solely on the conclusion of the prosecution to the effect that there was no sufficient evidence against the accused to sustain the allegation in the information, the trial judge did not perform his function of making an independent evaluation or assessment of the merits of the case. Despite the pronouncement in Marcelo that a final resolution of the appeal to the Department of Justice is necessary, both decisions followed the rule in Crespo vs. Mogul: Once a complaint or information is filed in court, any disposition of the case such as its dismissal or its continuation rests on the sound discretion of the court. Trial judges are thus required to make their own assessment of whether the secretary of justice committed grave abuse of discretion in granting or denying the appeal, separately and independently of the prosecutions or the secretarys evaluation that such evidence is insufficient or that no probable cause to hold the accused for trial exists. They should embody such assessment in their written order disposing of the motion. The above-mentioned cases depict two extreme cases in complying with this rule. In Marcelo, the dismissal of the criminal action upon the favorable recommendation of the Review Committee, Office of the City Prosecutor, was precipitate in view of the pendency of private complainants appeal to the secretary of justice. In effect, the secretarys opinion was totally disregarded by the trial court. In contrast, in Martinez the dismissal of the criminal action was an erroneous exercise of judicial discretion as the trial court relied hook, line and sinker on the resolution of the secretary, without making its own independent determination of the merits of the said resolution. No Grave Abuse of Discretion in theResolution of the Secretary of Justice In the light of recent holdings in Marcelo and Martinez; and considering that the issue of the correctness of the justice secretarys resolution has been amply threshed out in petitioners letter, the information, the resolution of the secretary of justice, the motion to dismiss, and even the exhaustive discussion in the motion for reconsideration all of which were submitted to the

court -- the trial judge committed grave abuse of discretion when it denied the motion to withdraw the information, based solely on his bare and ambiguous reliance on Crespo. The trial courts order is inconsistent with our repetitive calls for an independent and competent assessment of the issue(s) presented in the motion to dismiss. The trial judge was tasked to evaluate the secretarys recommendation finding the absence of probable cause to hold petitioner criminally liable for libel. He failed to do so. He merely ruled to proceed with the trial without stating his reasons for disregarding the secretarys recommendation. Had he complied with his judicial obligation, he would have discovered that there was, in fact, sufficient ground to grant the motion to withdraw the information. The documents before the trial court judge clearly showed that there was no probable cause to warrant a criminal prosecution for libel. Under the established scheme of things in criminal prosecutions, this Court would normally remand the case to the trial judge for his or her independent assessment of the motion to withdraw the information. However, in order not to delay the disposition of this case and to afford the parties complete relief, we have decided to make directly the independent assessment the trial court should have done. The petitioner has attached as annexes to the present petition for review the information, which contains a complete and faithful reproduction of the subject letter, the resolution of the secretary of justice, the prosecutions motion for reconsideration of the trial courts Order of February 22, 1993, and even the private complainants opposition to said motion. The records below have been reproduced and submitted to this Court for its appreciation. Thus, a remand to the trial court serves no purpose and will only clog the dockets. We thus proceed to examine the substance of the resolution of the secretary of justice. The secretary reversed the finding of probable cause on the grounds that (1) the subject letter was privileged in nature and (2) the complaint was merely a countercharge. In every case for libel, the following requisites must concur: (a) it must be defamatory; (b) it must be malicious; (c) it must be given publicity; and (d) the victim must be identifiable. At the preliminary investigation stage, these requisites must show prima facie a well-founded belief that a crime has been committed and that the accused probably committed it. A cursory reading of the information immediately demonstrates a failure on the part of the complainant to establish the foregoing elements of libel. Every defamatory imputation, even if true, is presumed malicious, if no good intention or justifiable motive for making it is shown. There is malice when the author of the imputation is prompted by personal ill will or spite and speaks not in response to duty but merely to injure the reputation of the person who claims to have been defamed. 33 In this case however, petitioners letter was written to seek redress of proper grievance against the inaccurate distribution and payment of professional fees and

against unfair treatment in the Nuclear Medicine Department of the Philippine Heart Center. It is a qualified privileged communication under Article 354(1) of the Revised Penal Code which provides: ART. 354. Requirement of publicity. -- Every defamatory imputation is presumed to be malicious, even if it be true, if no good intention and justifiable motive for making it is shown, except in the following cases: 1. A private communication made by any person to another in the performance of any legal, moral or social duty; and xxx xxx xxx The rule on privileged communication is that a communication made in good faith on any subject matter in which the communicator has an interest, or concerning which he has a duty, is privileged if made to a person having a corresponding interest or duty, although it contains incriminatory matter which, without the privilege, would be libelous and actionable. Petitioners letter was a private communication made in the performance of a moral duty on her part. Her intention was not to inflict an unjustifiable harm on the private complainant, but to present her grievance to her superior. The privileged nature of her letter overcomes the presumption of malice. There is no malice when justifiable motive exists; and in the absence of malice, there is no libel. We note that the information itself failed to allege the existence of malice. Thus, we agree with the ruling of the secretary of justice:34chanroblesvirtuallawlibrary x x x (T)he subject letter was written to bring to the attention of the Director of thePhilippine Heart Center for Asia and other responsible authorities the unjust and unfair treatment that Dr. Ledesma was getting from government employees, and the subject letter is a complaint x x x on a subject matter in which respondent has an interest and in reference to which she has a duty to question the same is definitely privileged (US vs. Bustos, 37 Phil. 131). Moreover, in Ang vs. Castro, 136 SCRA 455, the Supreme Court, citing Santiago vs. Calvo, 48 Phil. 922, ruled that a communication made in good faith upon any subject matter in which the party making the communication has an interest or concerning which he has a duty is privileged although it contains incriminatory or derogatory matter which, without the privilege, would be libelous and actionable. The follow-up letter sent by respondent to the director of the PHCA, is a directevidence of respondents righteous disposition of following the rule of law and is a clear indication that her purpose was to seek relief from the proper higher authority xxx. The same interpretation should be accorded the civil and administrative complaints which respondent filed against complainants. They are mere manifestations of her earnest desire to pursue proper relief for the alleged injustice she got fromcomplainants. If shewas motivated by malice and ill-will in sending the subject communication to theDirector of the PHCA, she would not have sent the second letter and filed the administrative and civil cases against complainants. In Alonzo, the settled rule is that, when a public officer, in the discharge of his or her official duties, sends a communication to

another officer or to a body of officers, who have a duty to perform with respect to the subject matter of the communication, such communication does not amount to publication within the meaning of the law on defamation.35 Publication in libel means making the defamatory matter, after it has been written, known to someone other than the person to whom it has been written.36 The reason for such rule is that a communication of the defamatory matter to the person defamed cannot injure his reputation though it may wound his self-esteem. A mans reputation is not the good opinion he has of himself, but the estimation in which others hold him.37 In this case, petitioner submitted the letter to the director of said hospital; she did not disseminate the letter and its contents to third persons. Hence, there was no publicity and the matter is clearly covered by paragraph 1 of Article 354 of the Penal Code. Further, we note that the information against petitioner was filed only on July 27, 1992 or one year after June 27, 1991, the date the letter was sent. It is obviously nothing more than a countercharge to give Complainant Torres a leverage against petitioners administrative action against him. Ineluctably, Judge Asuncions denial of the motion to withdraw the information and the reconsideration thereof was not only precipitate but manifestly erroneous. This is further compounded by the fact that he did not explain his grounds for his denial inasmuch as he did not make an independent assessment of the motion or the arguments in the resolution of the secretary of justice. All in all, such rash action did not do justice to the sound ruling in Crespo vs. Mogul upon which, ironically, he supposedly rested his action, or to the directive in Marcelo and Martinez where this Court required trial courts to make an independent assessment of the merits of the motion. WHEREFORE, the assailed Decision is hereby REVERSED and SET ASIDE. The Motion to Withdraw the Information dated February 17, 1993 filed before the trial court is GRANTED. No costs. SO ORDERED. G.R. No. 173654-765 July 30, 2009 PEOPLE OF THE PHILIPPINES, Plaintiff-appellee, vs. TERESITA PUIG and ROMEO PORRAS, Accused-Appellant. THIRD DIVISION RESO LUTIO N CHICO-NAZARIO, J.: In a Decision dated 28 August 2008, the Court granted the petition for review on certiorari filed in this case. The dispositive portion of the Decision reads: WHEREFORE, premises considered, the Petition for Review on Certiorari is hereby GRANTED. The Orders dated 30 January 2006 and 9 June 2006 of the RTC dismissing Criminal Cases No. 05-3054 to 05-3165 are REVERSED and SET ASIDE. Let the corresponding Warrants of Arrest issue against herein respondents TERESITA PUIG and ROMEO PORRAS. The RTC Judge of Branch 68, in Dumangas, Iloilo, is directed to proceed with the trial of Criminal Cases No. 05-3054 to 05-3165, 1 inclusive, with reasonable dispatch. No pronouncement as to costs.

However, on 2 September 2008, the Supreme Court En Banc, instead of ordering the arrest of respondents Teresita Puig and Romeo Porras for purposes of proceeding with the trial of Criminal Cases No. 05-3054 to 053165, issued a Warrant of Arrest addressed to the Director of the National Bureau of Investigation (NBI) and the Chief of the Philippine National Police (PNP), commanding them to effectuate the immediate arrest of herein respondent Teresita Puig only and commit her to the Correctional Institution for Women in Mandaluyong City.lavvph!l In light of the 28 August 2008 Decision of this Court and considering that trial on the merits has yet to proceed, the Warrant of Arrest ordering the arrest and commitment of respondent Teresita Puig to the Correctional Institution is hereby recalled.1awph!1 ACCORDINGLY, a new WARRANT of ARREST is hereby entered commanding the Director of the NBI and the PNP Chief to immediately ARREST, for the purpose of further proceedings (trial on the merits) in Criminal Cases No. 05-3054 to No. 05-3165, both respondents TERESITA PUIG and ROMEO PORRAS whose known address is Poblacion, Pototan, Iloilo, or anywhere in the Republic of the Philippines. FURTHER, the said officials are both DIRECTED to SUBMIT a report within ten (10) days from compliance herewith.

SO ORDERED.

G.R. Nos. 136164-65

April 20, 2001

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. EDGAR LEGASPI y LIBAO, accused-appellant. MELO, J.: On February 17, 1997, accused-appellant Edgar Legaspi y Libao was charged with the crimes of rape and robbery in two separate Informations filed with Branch 170 of the Regional Trial Court National Capital Judicial Region stationed in Malabon. The Informations respectively read as follows: Criminal Case No. 17640-MN That on or about the 11th day of February, 1997, in the Municipality of Malabon, Metro Manila, Philippines and within the jurisdiction of this Honorable Court, the above-named accused while armed with a bladed weapon, with lewd design and by means of force and intimidation, did, then and there, wilfully, unlawfully and feloniously have sexual intercourse with HONORATA ONG Y GUEVARRA, against her will and without her consent. CONTRARY TO LAW. Criminal Case No. 17641-MN

That on or about the 11th day of February, 1997, in the Municipality of Malabon, Metro Manila, Philippines and within the jurisdiction of this Honorable Court, the above-named accused while armed with bladed weapon, with intent to gain and by means of force, violation and intimidation, did, then and there, wilfully, unlawfully and feloniously take, rob and divest cash money in the amount of P500.00 to the damage and prejudice of the said HONORATA ONG Y GUEVARRA in the aforementioned amount of P500.00. CONTRARY TO LAW. (Rollo, pp. 4-5.) Since the charges were related, the prosecution's motion that the two cases be jointly tried was granted. For its part, the defense pointed out that accused-appellant had been previously treated at the National Center for Mental Health from February 28 to March 2, 1996. It moved that the arraignment of accused-appellant be deferred pending determination by the Center as to whether accused-appellant was mentally fit to stand the rigors of trial. This motion was likewise granted. Accused-appellant was finally arraigned on November 18, 1997, following submission of the report dated September 1, 1997 of the National Center for Mental Health stating that accused-appellant could stand trial. Upon his arraignment, accused-appellant pleaded not guilty and trial thereafter ensued, with the prosecution presenting three witnesses, namely, the complainant Honorata Ong, NBI Medico-Legal officer Dr. Ronaldo Mendez, and barangay tanod Gerardo Ocampo. The defense, on the other hand, presented accused-appellant and SPO4 Salvador Ibo. On November 6, 1998, the trial court rendered a decision, disposing: WHEREFORE, premises considered, judgment is hereby rendered as follows: 1. In Criminal Case No. 17640-MN, the Court finds accused Edgar Legaspi y Libao guilty beyond reasonable doubt of the crime of RAPE, and considering the presence of the aggravating circumstance of dwelling and nighttime, hereby sentences him to suffer the penalty of DEATH, and to pay Honorata Ong the sum of P50,000.00 as moral damages and P30,000.00 as exemplary damages plus cost of the suit; 2. In Criminal Case No. 17641-MN, the Court finds accused Edgar Legaspi y Libao guilty beyond reasonable doubt of the crime of ROBBERY and there being the presence of the aggravating circumstance of dwelling, hereby sentences him to suffer an indeterminate penalty of six (6) months of arresto mayor, as minimum, to nine (9) years of prision mayor, as maximum and to pay Honorata Ong the sum of P500.00 plus cost of suit; SO ORDERED. (Rollo, p. 18.) The supreme penalty of death having been imposed for the rape, the case is now before this Court on automatic review. As for accused-appellant's conviction for robbery, accused-appellant did not appeal therefrom, thus, as to that portion of the judgment against him, the same has become final and executory (Section 3[c], Rule 122). The facts, as shown by the records, are as follows:

At around 2:00 in the morning of February 11, 1997, complainant Honorata Ong, who was then sleeping inside her house with her three daughters, was awakened by the sound of their door opening. She initially thought that it was her husband coming home from work. When Honorata opened her eyes, however, she saw a man armed with a knife standing by her feet. More terrifying, the man already had his pants and briefs down on his knees and he was pointing to her eldest daughter. Alarmed, Honorata told the man not to touch her daughter. The man poked his knife at her and told her to stand up and then was made to lie down on the adjacent sofa. Thereafter, the man removed Honorata's panties and had sex with her. All this time, he had his knife at Honorata's neck. Honorata noticed that the man reeked of alcohol. After slaking his lust, Honorata's assailant stood up then asked for money. Since the man still had his knife pointed at her, Honorata could do nothing but comply. She gave him the only money she had, several bills amounting to P500.00. After threatening Honorata and her daughters with death if she reports the incident, the man left. Honorata, out of fear, could do nothing but close the door. Later that day, however, Honorata mustered enough courage to narrate her defilement to her sister-in-law and upon describing him, Honorata's sister-in-law exclaimed that she knew a person living in Manapat Street fitting the description. That afternoon, Honorata, together with her husband, reported the incident to the barangay captain. Thereafter, the captain, along with two tanods patrolled the area and, on the next day, they managed to nab a person who fits the description given by Honorata of her assailant. When the suspect was brought to the barangay hall for confrontation, he was positively identified by Honorata as the rapist. This person, later identified as accused-appellant Edgar Legaspi y Libao, was thus detained by the police. The next day, Honorata had herself medically examined at the NBI but no evident signs of extra-genital physical injuries were found on her body. On the other hand, all that accused-appellant could interpose as defenses were denial and alibi, stating that at the time of the alleged incident, he was at his home in Manapat Street sleeping. Accused-appellant also testified that he had been previously convicted of homicide and Roberto Eugenio, the victim therein, was a resident of the exact same address where complainant Honorata was living. Accused-appellant hinted at the possibility that relatives of Roberto Eugenio had conspired with complainant Honorata to get rid of him. Incidentally, Rivera Street where the alleged crime occurred is only two streets away from Manapat. Moreover, aside from Honorata's address, accused-appellant did not present proof that the relatives of Roberto Eugenio knew complainant Honorata. Given the above circumstances, the trial court, as earlier mentioned, found accused-appellant guilty of rape aggravated by dwelling and nighttime, and of robbery aggravated by dwelling; and thereupon, imposed upon him the supreme penalty of death for the rape, and an indeterminate penalty of six months to nine years for the robbery. Accused-appellant's plea for reversal is founded on the arguments that his guilt was not shown beyond reasonable doubt, and that complainant Honorata's testimony is replete with inconsistencies. He also insists on his alibi and alleged insanity. We have carefully reviewed the record and we find the above contentions devoid of merit.

In support of his first, second, and third assigned errors, which accusedappellant discussed jointly, he points to the discrepancies between Honorata's testimony in open court and the entry in the police blotter. Accused-appellant harps on the fact that as described in the blotter, the alleged rapist had an "ala Babalu face" (having an attenuated chin similar to that of the late comedian Babalu) and a mole on the upper left part of his lips, while accused-appellant is not "Babalu" and his mole is located not on the left but on the right side of his face. That the facial features of accused-appellant differ from the description of Honorata's assailant as found in the police blotter detracts not a whit from the credibility of Honorata's testimony. It must be kept in mind that Honorata positively identified accused-appellant as her rapist, not only during the investigation conducted by the police on the morning of January 15, but also during the trial. At the Malabon Police Station, Honorata identified accused-appellant thus: T: Bakit naman po kayo nandito ngayon sa aming himpilan at nagbigay ng malaya at kusang loob na salaysay? S: Para po ipagharap ng reklamo ang taong ito (affiant pointing/identifying person of EDGAR LEGASPI y LIBAO, @ EGAY, 29 years old, single, jobless, and residing at No. 86 Manapat Street, Barangay Tanong, Malabon, MM who is presently inside this room). T: S: Ito po bang taong ito ay dati na ninyong kilala? Hindi po.

T: Bakit naman po ninyo gustong ipagharap ng reklamo ang taong ito? S: Ni rape niya ako.

(Original Record, p. 80.) During the trial, Honorata likewise identified accused-appellant as the person who sexually violated her. She testified that she was able to recognize accused-appellant because the fluorescent lamp inside her house was lit at the time of the incident. Q: A: Q: A: It was dark. Why were you able to see that person? Because the light inside the house is on, sir. And you saw that person? Yes, sir.

(tsn, August 18, 1998, p. 3.) Likewise, we have heretofore held that a man and a woman cannot be physically closer to each other than during the sexual act (People vs. Fuertes, 296 SCRA 602 [1998]). We thus have on record Honorata's positive identification of accused-appellant as her assailant. Coupled with the oft-quoted doctrine that entries in police blotters, though regularly done in the course of the performance of official duty, are not conclusive proof of the truth stated in such entries since they are usually incomplete and inaccurate (People vs. Padlan, 290 SCRA 388 [1998]), we hold that any discrepancy in the police blotter entry and the open court testimony of Honorata does not affect her credibility. It must also be remembered that the entry in the police blotter was made at 6:30 on the morning of February 12, 1997, only a few hours after the rape and robbery. At that time, Honorata may not have yet fully recovered

from the traumatic ordeal she had gone through, resulting in an inaccurate entry in the police blotter: Besides, minor lapses are to be expected when a person is recounting details of a traumatic experience too painful to recall (People vs. Sta. Ana, 291 SCRA 188 [1998]). On the other hand, accused-appellant claims that if Honorata were indeed raped on the sofa of her one-room house, the creaking of the sofa and her moans would have awakened her three sleeping daughters. He asserts that, strangely, this did not happen. That Honorata's daughters, aged 3, 6, and 9 years, did not wake up during the assault is not as incredible as accused-appellant would make it out. The failure of the three children to wake up during the commission of the rape was probably due to the fact that they were sound asleep. It is not unusual for children of tender ages to be moved from their sleeping mats and transferred to another bed without eliciting the least protest from them, much less, awakening them (People vs. Mustacisa, 159 SCRA 227 [1988]). It is also to be noted that among poor couples with big families living in small quarters, copulation does not seem to be a problem despite the presence of other persons around them. One may also suppose that growing children sleep more soundly than grown-ups and are not easily awakened by adult exertions and suspirations in the night (People vs. Ignacio, 233 SCRA 1 [1994]). As to accused-appellant's submission that the absence of spermatozoa in Honorata's organ negates the commission of rape, the same rings hollow, the presence or absence of spermatozoa being immaterial in the prosecution of a rape case, as it is well-settled that it is penetration, however slight, and not ejaculation, that constitutes rape (People vs. dela Paz, Jr., 299 SCRA 86 [1998]). That there was penetration is shown by Honorata's testimony, thus: Q: A: When he removed your panty what did he do next? He inserted his organ in mine, sir.

the time of the incident. Accused-appellant's defense of alibi must, however, be looked upon with suspicion, not only because it is inherently weak and unreliable, but also because it can be easily fabricated and concocted (People vs. Tulop, 289 SCRA 316 [1998]). For alibi to prosper, the accused must prove not only that he was at some other place at the time of the commission of the crime, but also that it was physically impossible for him to be at the locus delicti or within its immediate vicinity (People vs. Ballesteros, 285 SCRA 438 [1998]). In the case at bar, accused-appellant has failed to meet both requisites. Aside from his testimony that he was asleep at the time of the incident, no other witness came forward to corroborate his version. Moreover, Manapat Street is only two streets away from Rodriguez Street, the scene of the crime. Accused-appellant even admitted during the trial that this was only a five-minute walk from his residence. Counterbalanced against Honorata's conduct immediately after the incident and her positive identification of accused-appellant as her assailant, accused-appellant's defense of alibi is unavailing. In the words of the trial court: Honorata did not know the accused before the incident. She immediately revealed the fate that befell on her to her sister-inlaw. They then reported the incident to the barangay and thereafter to the police authorities; executed a sworn statement; submitted herself to a physical examination by a Medico-Legal Officer of the NBI; and subscribed and swore to a complaint for rape which would necessarily result in her exposure to the rigors of public trial. The spontaneity of these acts clearly demonstrates her sincere desire to bring the accused to justice. Moreover, no married woman in her right mind would subject herself to public scrutiny and humiliation in order to perpetuate a falsehood. Neither would she take the risk of being alienated from her husband and family had she not been violated and robbed of her money. (RTC Decision, p. 4-5.) In accused-appellant's last assignment of error, he claims that the court a quo erred in not ruling that he is entitled to the exempting circumstance of insanity. For insanity to be considered, Paragraph 1, Article 12 of the Revised Penal Code requires a complete deprivation of rationality in committing the act, i.e., that the accused be deprived of reason, that there be no consciousness of responsibility for his acts, or that there be complete absence of the power to discern. The defense of insanity or imbecility must be clearly proved, however, for there is a presumption that acts penalized by law are voluntary (People vs. Medina, 286 SCRA 44 [1998]). To prove his insanity, accused-appellant's counsel points to his confinement at the National Center for Mental Health prior to the incident in question. Likewise, his counsel claims that when Honorata saw accused-appellant, the latter's pants and briefs were already down on his knees. He takes this to be an indicium of insanity. Mere prior confinement does not prove that accused-appellant was deprived of reason at the time of the incident. Firstly, accused-appellant did not submit proof that he was adjudged insane by the National Center for Mental Health, only that he had been confined therein. Note also that accused-appellant had already been discharged from the Center prior to the incident. Even if accused-appellant were adjudged insane prior to the incident, his discharge implies that he was already considered well. In fact, the psychiatric evaluation report of accused-appellant states that his

disorder "runs a chronic course with periods of exacerbations and remissions." If the insanity is only occasional or intermittent in nature, the presumption of its continuance does not arise. He who relies on such insanity proved at another time must prove its existence also at the time of the commission of the offense (People vs. Bonoan, 64 Phil. 87). This, accused-appellant has failed to do. Neither does having one's pants and briefs on one's knees indicate deprivation of reason. If anything else, it shows the lechery and depravity of accused-appellant. Mental depravity which results not from any disease of the mind, but from a perverted condition of the moral system, where the person is mentally sane, does not exempt one from responsibility for crimes committed under its influence (People vs. Medina, supra). The Court cannot, therefore, appreciate the defense of insanity brought by accused-appellant. In sum, we find that the trial court did not err in finding Honorata's testimony to be clear, straightforward, and worthy of credence, and consequently, in finding accused-appellant guilty beyond reasonable doubt of the crime of rape. We now come to the proper penalty. Under Article 335 (now Article 266-B) of the Revised Penal Code, "whenever the crime of rape is committed with the use of a deadly weapon or by two or more persons, the penalty shall bereclusion perpetua to death." According to the trial court: The rape charge was committed in the victim's dwelling at nighttime. Dwelling and nighttime are aggravating circumstances in rape (People vs. Padilla 242 SCRA 629). On the other hand, the aggravating circumstance of nighttime cannot be appreciated in the robbery charge because of (sic) the notion to commit the crime was conceived only shortly when the rape was committed at darkness. However, the aggravating circumstance of dwelling is a different story and should be considered. Dwelling is aggravating in robbery with violence against or intimidation of person because this class of robbery can be committed without the necessity of trespassing the sanctity of the offended party's house. Entrance into the dwelling house of the offended party is not an element of the offense (People vs. Cabato 160 SCRA 98). Finally, for sexually assaulting a married woman thereby grievously wronged (sic) the institution of marriage, the imposition of exemplary damages by way of example to deter others from committing the crime is just (sic) warranted. (RTC Decision, pp. 5-6.) Considering the presence of the aggravating circumstances of nighttime and dwelling, the trial court imposed the supreme penalty of death on accused-appellant for the crime of rape. However, a cursory examination of the Information filed against accusedappellant would show that the aggravating circumstances of nighttime and dwelling are not specified therein. Now, at the time the trial court rendered its decision, the non-allegation of generic aggravating circumstances in the information was immaterial, since the rule then prevailing was that generic aggravating circumstances duly proven in the course of the trial could be taken into account by the trial court in determining the proper imposable penalty even if such circumstances were not alleged in the information (People vs. Deberto, 205 SCRA 291 [1992]).

Q: How did you come to know it was his penis that entered your private part? A: I felt pain, sir.

(tsn, August 18, 1998, p. 5.) Finally, accused-appellant contends that Honorata lied when she claimed not having known accused-appellant or his family prior to the incident. Accused-appellant takes this to be indicative that Honorata plotted with the family of Roberto Eugenio to get rid of him. As proof of Honorata's alleged prevarication, accused-appellant presented the voter's registration record of a certain Roberto Eugenio, allegedly accused-appellant's victim in a homicide case four years prior to the incident in question, indicating that Roberto's address was 27-D Rivera Street, Taong, Malabon, Metro Manila, the exact same address of Honorata. Accused-appellant has not presented proof that Honorata knew Roberto Eugenio or his relatives. Neither has he shown that any relative of Eugenio still resides at Honorata's address, 27-D Rivera Street. Moreover, mere residence at the same address is not proof that Honorata conspired with the relatives of Roberto Eugenio in an attempt to get rid of accusedappellant. False testimony or incriminatory machinations must be proved by evidence more substantial than a voter's registration record. In his defense, accused-appellant raises the defense of alibi, claiming that he was asleep at his house at #86 Manapat Street, Taong, Malabon at

Nonetheless, it is to be noted that the appreciation by the trial court of the aggravating circumstances of dwelling and nighttime, despite the nonallegation thereof in the Information, resulted in the imposition of the supreme penalty of death upon accused-appellant. In People v. Gallego (G.R. No. 130603, August 15, 2000), We had occasion to rule, thus: In People v. Albert (251 SCRA 136 [1995]), we admonished courts to proceed with more care where the possible punishment is in its severest form death because the execution of such a sentence is irrevocable. Any decision authorizing the State to take life must be as error-free as possible, hence it is the bounden duty of the Court to exercise extreme caution in reviewing the parties' evidence. Safeguards designed to reduce to a minimum, if not eliminate, the grain of human fault ought not to be ignored in a case involving the imposition of capital punishment for an erroneous conviction "will leave a lasting stain in our escutcheon of justice." The accused must thence be afforded every opportunity to present his defense on an aggravating circumstance that would spell the difference between life and death in order for the Court to properly "exercise extreme caution in reviewing the parties' evidence." This, the accused can do only if he is appraised of the aggravating circumstance raising the penalty imposable upon him to death. Such aggravating circumstance must be alleged in the information, otherwise the Court cannot appreciate it. The death sentence being irrevocable, we cannot allow the decision to take away life to hinge on the inadvertence or keenness of the accused in predicting what aggravating circumstance will be appreciated against him. In a series of cases under the regime of Rep. Act No. 7659, the Court did not appreciate the aggravating circumstance of dwelling which would have increased the imposable penalty to death when such circumstance was not alleged in the information. In People v. Gaspar, et al. (318 SCRA 649 [1999]), the Court found that apart from treachery, dwelling also attended the killing of the victim. Despite this finding and the absence of any mitigating circumstance, the Court nonetheless did not appreciate dwelling and-imposed the penalty of reclusion perpetua and not the greater penalty of death. Hence, in the case at bar, considering that the aggravating circumstance of dwelling was not alleged in the information, we cannot appreciate it and raise the penalty imposed upon Raul Gallego from reclusion perpetua to death. (Emphasis supplied.) The principle above-enunciated is applicable to the case at bar. Consequently, we hold that due to their non-allegation in the Information for rape filed against accused-appellant, the aggravating circumstances of nighttime and dwelling cannot be considered in raising the penalty imposable upon accused-appellant from reclusion perpetua to death. Parenthetically, the above rule is inapplicable for the crime of robbery committed by accused-appellant, the same not involving the imposition of the death penalty. For said crime, what remains applicable is the old rule that generic aggravating circumstances if duly proven in the course of the trial could be taken into account by the trial court in determining the proper imposable penalty, even if such circumstances were not alleged in the

Information. Thus, for the crime of robbery, the trial court correctly imposed an indeterminate penalty of six (6) months of arresto mayor, as minimum, to nine (9) years of prision mayor, as maximum. It is to be noted carefully that the rule on generic aggravating circumstances has now been formalized in the Revised Rules of Criminal Procedure, which took effect on December 1, 2000. Section 8 of Rule 110 now provide that: SECTION 8. Designation of the offense. The complaint or information shall state the designation of the offense given by the statute, aver the acts or omissions constituting the offense, and specify its qualifying and aggravating circumstances. If there is no designation of the offense, reference shall be made to the section or subsection of the statute punishing it. (Emphasis supplied.) Likewise, Section 9 of the same Rule provides: SECTION 9. Cause of the accusation. The acts or omissions complained of as constituting the offense and the qualifying and aggravating circumstances must be stated in ordinary and concise language and not necessarily in the language used in the statute but in terms sufficient to enable a person of common understanding to know what offense is being charged as well as its qualifying and aggravating circumstances and for the court to pronounce judgment. (Emphasis supplied.) Sections 8 and 9 were discussed by this Court En Banc on June 20, 2000. According to the minutes of said session: Justice Puno then invited the attention of the Court to Sections 8 and 9 of Rule 110. He explained that the proposal requiring the allegation of qualifying circumstances in the information reflects the recent decisions of the Court, especially in heinous crimes. However, the Court concerned itself with the proposed requirement of likewise alleging aggravating circumstances in the information. Justice Panganiban raised the question of what to do with an aggravating circumstance which was not alleged but was proved and not objected to during trial. Justice Melo answered that it cannot be used to increase the penalty if it was not alleged even if proved. Justice Puno explained that the proposal strengthens the right to due process of an accused, part of which is to be shielded from surprises. Chief Justice Davide and Justice Panganiban agreed and emphasized that the presence of aggravating circumstances can make the difference between life and death where the imposable penalty is reclusion temporal maximum to death or reclusion perpetua to death. Justice Panganiban added that the prosecutors will now be compelled to prepare well-worded information. To make sure that the circumstances that need to be alleged are not missed out in the information, Justice Mendoza suggested that the Court can prescribe an updated form in the Rules of Court. Thus, the Rules now require qualifying as well as aggravating circumstances to be expressly and specifically alleged in the Complaint or

Information, otherwise the same will not be considered by the court even if proved during the trial. And this principle is applicable in all criminal cases, not only in cases were the aggravating circumstance would increase the penalty to death. With this, the Court gives fair warning to prosecutors that henceforth, they must prepare well-crafted information that allege the circumstances qualifying and aggravating the crimes charged, otherwise the same will not be considered by the court in determining the proper imposable penalty. The Court further notes that while the trial court awarded the victim the sum of P50,000.00 as moral damages and P30,000.00 as exemplary damages, it failed to award civil indemnity to the victim. Prevailing jurisprudence holds that in rape cases, the victim should be awarded P50,000.00 as civil indemnity and another P50,000.00 as moral damages for the injury evidently suffered. Moreover, the fact that the victim was raped inside her house in the presence of her children justifies the trial court's imposition of exemplary damages. WHEREFORE, premises considered, the decision under review finding accused-appellant EDGAR LEGASPI y LIBAO guilty beyond reasonable doubt of the crime of rape in Criminal Case No. 17640-MN is AFFIRMED with the MODIFICATION that he is sentenced to suffer the reduced penalty of reclusion perpetua and to pay Honorata Ong the sum of Fifty Thousand pesos as civil indemnity, another Fifty Thousand Pesos (P50,000.00) as moral damages and Thirty Thousand Pesos (P30,000.00) as exemplary damages. No special pronouncement is made as to costs. SO ORDERED. G.R. No. 103102 March 6, 1992 CLAUDIO J. TEEHANKEE, JR., petitioner, vs. HON. JOB B. MADAYAG and PEOPLE OF THE PHILIPPINES, respondents. REGALADO, J.: In this special civil action for certiorari, prohibition and mandamus, 1 petitioner principally seeks: (1) to nullify the order of respondent judge admitting the amended information for murder filed in Criminal Case No. 91-4606; (2) to nullify the arraignment and the plea of not guilty entered by order of respondent judge when petitioner refused to be arraigned on the amended information for lack of preliminary investigation therefor; (3) to nullify the appointment of a counsel de oficio/PAO lawyer to represent petitioner; (4) to prohibit respondent judge from "over-speedy and preferential scheduling of the trial of the aforementioned criminal case;" and (5) to compel respondent judge to order preliminary investigation of the crime charged in the amended information. 2 Petitioner was originally charged on July 19, 1991 in an information for the crime of frustrated murder allegedly committed as follows: That on or about the 13th day of July 1991, in the Municipality of Makati, Metro Manila, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, while armed with a handgun, with intent to kill, treachery and evident premeditation, did then and there willfully, unlawfully, and feloniously attack, assault and shoot one Maureen Navarro Hultman on the head, thereby inflicting gunshot wounds, which ordinarily would have caused the

death of said Maureen Navarro Hultman, thereby performing all the acts of execution which would have produced the crime of Murder as a consequence, but nevertheless did not produce it by reason of cause or causes independent of her will, that is, due to the timely and able medical assistance rendered to said Maureen Navarro Hultman which prevented her death. After the prosecution had rested its case, petitioner was allowed to file a motion for leave to file a demurrer to evidence. However, before the said motion could be filed, Maureen Navarro Hultman died. Consequently, private prosecutor Rogelio A. Vinluan filed an omnibus 3 motion for leave of court to file an amended information and to admit said 4 amended information. The amended information, filed on October 31, 1991, reads: That on or about the 13th day of July, 1991, in the Municipality of Makati, Metro Manila, Philippines and within the jurisdiction of this Honorable Court, the said Claudio Teehankee, Jr. y. Javier, armed with a handgun, with intent to kill and evident premeditation and by means of treachery, did then and there willfully, unlawfully and feloniously attack, assault and shoot with the said handgun Maureen Navarro Hultman who was hit in the head, thereby inflicting mortal wounds which directly caused the death of said Maureen Hultman. 5 6 Petitioner filed an opposition thereto, as well as a rejoinder to the 7 reply of the prosecution. On November 13, 1991, the trial court issued the questioned order admitting the amended information. At the scheduled arraignment on November 26, 1991, petitioner refused to be arraigned on the amended information for lack of a preliminary investigation thereon. By reason of such refusal, respondent judge ordered that a plea of "not guilty" be entered for petitioner. Thereafter, respondent judge ordered the prosecution to present its evidence. When petitioner's counsel manifested that he would not take part in the proceedings because of the legal issue raised, the trial court appointed a counsel de oficio to represent herein petitioner. Petitioner now raises the following issues before us: (a) Whether or not an amended information involving a substantial amendment, without preliminary investigation, after the prosecution has rested on the original information, may legally and validly be admitted; (b) Whether or not a counsel de oficio may legally and validly be appointed to represent an accused who is represented by counsel of choice who refuses to participate in the proceedings because of a perceived denial of due process and after a plea for appellate remedies within a short period is denied by the trial court; and (c) Whether or not a particular criminal case may legally and validly be rushed and preferentially scheduled for trial over and at the expense and sacrifice of other, specially older, criminal cases. 8 In our resolution of January 14, 1992, we required the Solicitor General to file a comment to the basic petition. It appearing from a further review of the record that the operative facts and determinant issues involved in this case are sufficiently presented in the petition and the annexes thereto,

both in regard to the respective positions of petitioner and respondents, the Court has decided to dispense with the aforesaid comment to obviate needless delay in fairness to petitioner. I. Petitioner avers that the additional allegation in the amended information, as herein underscored, that the accused ". . . did then and there willfully, unlawfully and feloniously attack, assault and shoot with the said handgun Maureen Navarro Hultman who was hit in the head, thereby inflicting mortal wounds which directly caused the death of said Maureen Hultman . . ." constitutes a substantial amendment since it involves a change in the nature of the offense charged, that is, from frustrated to consummated murder. Petitioner further submits that "(t)here is a need then to establish that the same mortal wounds, which were initially frustrated (sic) by timely and able medical assistance, ultimately caused the death of the victim, because it could have been caused by a 9 supervening act or fact which is not imputable to the offender." From this, he argues that there being a substantial amendment, the same may no longer be allowed after arraignment and during the trial. Corollary thereto, petitioner then postulates that since the amended information for murder charges an entirely different offense, involving as it does a new fact, that is, the fact of death whose cause has to be established, it is essential that another preliminary investigation on the new charge be conducted before the new information can be admitted. We find no merit in the petition. There are sufficient legal and jurisprudential moorings for the orders of the trial court. Section 14, Rule 110 of the 1985 Rules on Criminal Procedure provides: Sec. 14. Amendment. The information or complaint may be amended, in substance or form, without leave of court, at any time before the accused pleads; and thereafter and during the trial as to all matters of form, by leave and at the discretion of the court, when the same can be done without prejudice to the rights of the accused. If it appears at any time before judgment that a mistake has been made in charging the proper offense, the court shall dismiss the original complaint or information upon the filing of a new one charging the proper offense in accordance with Rule 119, Section 11, provided the accused would not be placed thereby in double jeopardy and may also require the witnesses to give bail for their appearance at the trial. The first paragraph provides the rules for amendment of the information or complaint, while the second paragraph refers to the substitution of the information or complaint. It may accordingly be posited that both amendment and substitution of the information may be made before or after the defendant pleaded, but they differ in the following respects: 1. Amendment may involve either formal or substantial changes, while substitution necessarily involves a substantial change from the original charge; 2. Amendment before plea has been entered can be effected without leave of court, but substitution of information must be with leave of court as the original information has to be dismissed; 3. Where the amendment is only as to form, there is no need for another preliminary investigation and the retaking of the plea of the accused; in substitution of information, another preliminary investigation is entailed and the accused has to plead anew to the new information; and 4. An amended information refers to the same offense charged in the original information or to an offense which necessarily includes or is

necessarily included in the original charge, hence substantial amendments to the information after the plea has been taken cannot be made over the objection of the accused, for if the original information would be withdrawn, the accused could invoke double jeopardy. On the other hand, substitution requires or presupposes that the new information involves a different offense which does not include or is not necessarily included in the original charge, hence the accused cannot claim double jeopardy. In determining, therefore, whether there should be an amendment under the first paragraph of Section 14, Rule 110, or a substitution of information under the second paragraph thereof, the rule is that where the second information involves the same offense, or an offense which necessarily includes or is necessarily included in the first information, and amendment of the information is sufficient; otherwise, where the new information charges an offense which is distinct and different from that initially charged, a substitution is in order. There is identity between the two offenses when the evidence to support a conviction for one offense would be sufficient to warrant a conviction for the other, or when the second offense is exactly the same as the first, or when the second offense is an attempt to commit or a frustration of, or when it necessarily includes or is necessarily included in, the offense charged in the first information. In this connection, an offense may be said to necessarily include another when some of the essential elements or ingredients of the former, as this is alleged in the information, constitute the latter. And, vice-versa, an offense may be said to be necessarily included in another when the essential ingredients of the former constitute 10 or form a part of those constituting the latter. Going now to the case at bar, it is evident that frustrated murder is but a stage in the execution of the crime of murder, hence the former is necessarily included in the latter. It is indispensable that the essential element of intent to kill, as well as qualifying circumstances such as treachery or evident premeditation, be alleged in both an information for frustrated murder and for murder, thereby meaning and proving that the same material allegations are essential to the sufficiency of the informations filed for both. This is because, except for the death of the victim, the essential elements of consummated murder likewise constitute the essential ingredients to convict herein petitioner for the offense of frustrated murder. In the present case, therefore, there is an identity of offenses charged in both the original and the amended information. What is involved here is not a variance in the nature of different offenses charged, but only a change in the stage of execution of the same offense from frustrated to consummated murder. This is being the case, we hold that an amendment of the original information will suffice and, consequent thereto, the filing of the amended information for murder is proper. Petitioner would insist, however, that the additional allegation on the fact of death of the victim Maureen Navarro Hultman constitutes a substantial amendment which may no longer be allowed after a plea has been entered. The proposition is erroneous and untenable. As earlier indicated, Section 14 of Rule 110 provides that an amendment, either of form or substance, may be made at any time before the accused enters a plea to the charge and, thereafter, as to all matters of form with leave of court. A substantial amendment consists of the recital of facts constituting the offense charged and determinative of the jurisdiction of the court. All other 11 matters are merely of form. Thus, the following have been held to be merely formal amendments, viz: (1) new allegations which relate only to the range of the penalty that the court might impose in the event of 12 conviction; (2) an amendment which does not charge another offense

different or distinct from that charged in the original one; (3) additional allegations which do not alter the prosecution's theory of the case so as to cause surprise to the accused and affect the form of defense he has or will assume; and (4) an amendment which does not adversely affect any 14 substantial right of the accused, such as his right to invoke prescription. We repeat that after arraignment and during the trial, amendments are allowed, but only as to matters of form andprovided that no prejudice is 15 caused to the rights of the accused. The test of whether an amendment is only of form and an accused is not prejudiced by such amendment has been said to be whether or not a defense under the information as it originally stood would be equally available after the amendment is made, and whether or not any evidence the accused might have would be equally applicable to the information in the one form as in the other; if the answer is in the affirmative, the amendment is one of form and not of 16 substance. Now, an objective appraisal of the amended information for murder filed against herein petitioner will readily show that the nature of the offense originally charged was not actually changed. Instead, an additional allegation, that is, the supervening fact of the death of the victim was merely supplied to aid the trial court in determining the proper penalty for the crime. That the accused committed a felonious act with intent to kill the victim continues to be the prosecution's theory. There is no question that whatever defense herein petitioner may adduce under the original information for frustrated murder equally applies to the amended information for murder. Under the circumstances thus obtaining, it is irremissible that the amended information for murder is, at most, an amendment as to form which is allowed even during the trial of the case. It consequently follows that since only a formal amendment was involved and introduced in the second information, a preliminary investigation is unnecessary and cannot be demanded by the accused. The filing of the amended information without the requisite preliminary investigation does not violate petitioner's right to be secured against hasty, malicious and oppressive prosecutions, and to be protected from an open and public accusation of a crime, as well as from the trouble, expenses and anxiety of a public trial. The amended information could not conceivably have come as a surprise to petitioner for the simple and obvious reason that it charges essentially the same offense as that charged under the original information. Furthermore, as we have heretofore held, if the crime originally charged is related to the amended charge such that an inquiry into one would elicit substantially the same facts that an inquiry into the 17 other would reveal, a new preliminary investigation is not necessary. We find nothing irregular in the appointment by the trial court of a counsel de oficio for herein petitioner whose counsel of record refused to participate in the proceedings because of an alleged legal issue. Such issue having been demonstrated herein as baseless, we apprehend his refusal to participate in the trial as causative of or contributive to the delay in the disposition of the case. And, finally, for as long as the substantial rights of herein petitioner and other persons charged in court are not prejudiced, the scheduling of cases should be left to the sound discretion of the trial court. WHEREFORE, it being clearly apparent that respondent judge did not commit the errors speciously attributed to him, the extraordinary writs prayed for are hereby DENIED and the instant petition is DISMISSED for lack of merit. SO ORDERED. G.R. No. 114046 October 24, 1994 HONORATO GALVEZ and GODOFREDO DIEGO, petitioners, vs.

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COURT OF APPEALS (17TH DIVISION), First Asst. Provincial Prosecutor. DENNIS M. VILLA-IGNACIO of Pasig, Rizal; THE PEOPLE OF THE PHILIPPINES; and PNP P/SR. SUPT. RICARDO F. DE LEON, Camp Commander and Head of the PNP Custodial Group, Camp Crame, Cubao, Quezon City, respondents. Emerito M. Salva & Associates; Juanito L. Andrade; and Lazaro Law Firm for petitioners. REGALADO, J.: Submitted for resolution in the present special civil action are: (1) the basic petition for certiorari and mandamuswith a petition for habeas corpus, to review the resolution issued by respondent Court of Appeals, dated 1 February 18, 1994, in CA-G.R. SP No. 33261; (2) the Urgent 2 3 Motion and Supplemental Urgent Motion for Immediate Action on Petition for Habeas corpus; and (3) the Urgent Petition to Declare Judge Jaime N. Salazar, Jr. and First Assistant Provincial Prosecutor Dennis M. Villa-Ignacio for Contempt and to Annul Proceedings (with Immediate 4 Prayer for another Cease and Desist Order). On November 12, 1993, petitioners Honorato Galvez, the incumbent Mayor of San Ildefonso, Bulacan, and one Godofredo Diego were charged in three separate informations with homicide and two counts of frustrated homicide fot has been the rule that under the first paragraph of Section 14, Rule 110, the amendment of the information may also be made even if it may result in altering the nature of the charge so long as it Regional Trial Court of Malolos, Bulacan, Branch 14, and docketed as Criminal Cases 5 Nos. 3642-M-93 to 3644-M-93. Both accused posted their respective cash bail bonds and were subsequently released from detention. On November 15, 1993, Bulacan Provincial Prosecutor Liberato L. Reyes filed a Motion to Defer Arraignment and Subsequent Proceedings to enable him "to review the evidence on record and determine once more 6 the proper crimes chargeable against the accused," which was granted 7 by Judge Villajuan in an order dated November 16, 1993. Thereafter, pursuant to Department Order No. 369 of the Department of Justice, respondent Prosecutor Dennis M. Villa-Ignacio was designated Acting Provincial Prosecutor of Bulacan and was instructed to conduct a reinvestigation of the aforesaid criminal cases filed against herein 8 petitioners. By virtue of a Manifestation with Ex-parte Motion dated November 23, 9 1993 filed by respondent prosecutor, the proceedings were again ordered suspended by Judge Villajuan until after the prosecution's request for change of venue shall have been resolved by the Supreme Court, and the preliminary investigation being conducted by the former shall have been 10 terminated. It appears that on December 2, 1993, private complainants, through their counsel, Atty. Silvestre R. Bello III, had filed with the Supreme Court a Petition for Change of Venue of Criminal Cases Nos. 3642-M-93 to 3644-M-93, purportedly to safeguard the lives of the victims 11 and their witnesses, and to prevent a miscarriage of justice. On December 15, 1993, before petitioners could be arraigned in Criminal Cases Nos. 3642-M-93 to 3644-M-93, respondent prosecutor filed an Ex 12 parte Motion to Withdraw Informations in said cases. This motion was granted by Judge Villajuan also on December 15, 1993 and the cases 13 were considered withdrawn from the docket of the court. On the same day, Prosecutor Villa-Ignacio filed four new informations against herein petitioners for murder, two counts of frustrated murder, and violation of 14 Presidential Decree No. 1866 for illegal possession of firearms which were subsequently raffled to the sala of Judge Victoria Pornillos of Branch 10, Regional Trial Court of Malolos, Bulacan and were docketed therein as Criminal

Cases Nos. 4004-M-93 to 4007-M-93. No bail having been recommended for the crime of murder, Judge Pornillos ordered the arrest of herein 15 petitioners. On December 23, 1993, said presiding judge issued an order 16 setting the arraignment of the accused for December 27, 1993. On December 27, 1993, the scheduled arraignment before Judge Pornillos were reset due to the absence of respondent prosecutor. On even date, petitioners filed before Judge Villajuan a Motion for Reconsideration of his order of December 15, 1993 which granted the 17 motion to withdraw the original informations. Thereafter, a Motion to Quash the new informations for lack of jurisdiction was filed by petitioners before Judge Pornillos on January 3, 18 1994. At the court session set for the arraignment of petitioners on January 24, 1994, Judge Pornillos issued an order denying the motion to quash and, at the same time, directed that a plea of not guilty be entered 19 for petitioners when the latter refused to enter their plea. In the meantime, and prior to the arraignment of herein petitioners before Judge Pornillos, an order was issued on January 20, 1994 by Judge Villajuan granting the motion for reconsideration filed by petitioners, ordering the reinstatement of Criminal Cases Nos. 3642-M-93 to 3644-M93, and setting the arraignment of the accused therein for February 8, 20 1994. On said date, however, the arraignment was suspended and, in the meanwhile, petitioners filed a petition for certiorari, prohibition and mandamus with respondent Court of Appeals, assailing the order dated January 24, 1994 issued by Judge Pornillos which denied petitioners' motion to quash filed in Criminal Cases Nos. 4004-M-93 and 4007-M-93. As earlier stated, respondent court dismissed the petition in its questioned resolution of February 18, 1994, hence this petition. I. On the Main Petition The main issue in this case involves a determination of the set of informations under which herein petitioners should be tried, that is, (a) the first set of informations for homicide and frustrated homicide in Criminal Cases Nos. 3642-M-93 to 3644-M-93, or (b) the subsequent informations for murder, frustrated murder, and illegal possession of firearms in Criminal Cases Nos. 4004-M-93 to 4007-M-93. Several corollary but equally important issues have likewise been addressed to us for resolution, to wit: 1. Whether the ex parte motion to withdraw the original informations is null and void on the ground that (a) there was no notice and hearing as required by Sections 4, 5 and 6, Rule 15 of the Rules of Court; and (b) the appropriate remedy which should have been adopted by the prosecution was to amend the informations by charging the proper offenses pursuant to Section 14 of Rule 110; 2. Whether the order granting the withdrawal of the original informations was immediately final and executory; 3. Whether Judge Pornillos was correct in denying the motion to quash and thereby acquired jurisdiction over the new informations considering that (a) the designated public prosecutor allegedly had no authority to file the second set of informations; and (b) the filing thereof constituted forum shopping; and 4. Whether the arraignment proceeding held on January 24, 1994 in Criminal Cases Nos. 4004-M-93 to 4007-M-93 was valid. We shall discuss these issues seriatim.

1. It is petitioners' submission that the prosecution's failure to serve them a copy of the motion to withdraw the original informations and to set said motion for hearing constitutes a violation of their right to be informed of the proceedings against them, as well as a violation of Sections 4, 5 and 6, Rule 15 of the Rules of Court. Hence, so they contend, the ex parte motion should be considered as a worthless scrap of paper and Judge Villajuan had no authority to act on it. Ergo, the order granting the same is null and void. Petitioners advance the theory that respondent prosecutor should have amended the original informations instead of withdrawing the same and filing new ones. They postulate that the principle of nolle prosequi does not apply in this case since the withdrawal or dismissal of an information is addressed solely to the sound and judicious discretion of the court which has the option to grant or deny it and the prosecution cannot impose its opinion on the court. It is further stressed that in case there is a need to change the nature of the offense charged, that is, from homicide to murder, by adding the qualifying circumstance of treachery, the only legal and proper remedy is through the filing of the corresponding amended information; and that the withdrawal of an information is allowed only where the new information involves a different offense which does not include or is not included in the offense originally charged. Normally, an accused would not object to the dismissal of an information against him because it is to his best interest not to oppose the same. Contrarily, if the accused should deem such conditional or provisional dismissal to be unjust and prejudicial to him, he could object to such dismissal and insist that the case be heard and decided on the 21 merits. However, considering that in the original cases before Branch 14 of the trial court petitioners had not yet been placed in jeopardy, and the ex parte motion to withdraw was filed and granted before they could be arraigned, there would be no imperative need for notice and hearing thereof. In actuality, the real grievance of herein accused is not the dismissal of the original three informations but the filing of four new informations, three of which charge graver offenses and the fourth, an additional offense. Had these new informations not been filed, there would obviously have been no cause for the instant petition. Accordingly, their complaint about the supposed procedural lapses involved in the motion to dismiss filed and granted in Criminal Cases Nos. 3642-M-93 to 3644-M-93 does not impress us as a candid presentation of their real position. Petitioners' contention that the dismissal of the original informations and the consequent filing of the new ones substantially affected their right to bail is too strained and tenuous an argument. They would want to ignore the fact that had the original informations been amended so as to charge the capital offense of murder, they still stood to likewise be deprived of their right to bail once it was shown that the evidence of guilt is strong. Petitioners could not be better off with amended informations than with the subsequent ones. It really made no difference considering that where a capital offense is charged and the evidence of guilt is strong, bail becomes a matter of discretion under either an amended or a new information. Contrary to petitioners' submission, the absence of notice and hearing does not divest a trial court of authority to pass on the merits of the motion. It has been held that The order of the court granting the motion to dismiss despite absence of a notice of hearing, or proof of service thereof, is merely an irregularity in the proceedings. It cannot deprive a competent court of jurisdiction over the case. The court still retains its authority to pass on the merits of the motion. The remedy of the aggrieved party in such cases is either

to have the order set aside or the irregularity otherwise cured by the court which dismissed the complaint, or to appeal from the dismissal and 22 not certiorari. Besides, when petitioners were given by Judge Villajuan the opportunity to file a motion for reconsideration, even assuming the alleged procedural infirmity in his issuance of the order of dismissal, the same was thereby deemed cured. This is especially so in this case since, on his order, the original informations were reinstated in Branch 14 of the trial court. The rule is now well settled that once a complaint or information is filed in court any disposition of the case, whether as to its dismissal or the conviction or the acquittal of the accused, rests in the sound discretion of the court. Although the prosecutor retains the direction and control of the prosecution of criminal cases even when the case is already in court, he cannot impose his opinion upon the tribunal. For while it is true that the prosecutor has the quasi-judicial discretion to determine whether or not a criminal case should be filed in court, once the case had already been brought therein any disposition the prosecutor may deem proper thereafter should be 23 addressed to the court for its consideration and approval. The only qualification is that the action of the court must not impair the substantial rights of the accused or the right of the People to due process of law. We reiterate once again the doctrine we enunciated and explained 24 in Crespo vs. Mogul, etc., et al.: Whether the accused had been arraigned or not and whether it was due to a reinvestigation by the fiscal or a review by the Secretary of Justice whereby a motion to dismiss was submitted to the Court, the Court in the exercise of its discretion may grant the motion or deny it and require that the trial on the merits proceed for the proper determination of the case. xxx xxx xxx The rule therefore in this jurisdiction is that once a complaint or information is filed in Court any disposition of the case as to its dismissal or the conviction or acquittal of the accused rests in the sound discretion of the Court. Although the fiscal retains the direction and control of the prosecution of criminal cases even while the case is already in Court he cannot impose his opinion on the trial court. The court is the best and sole judge on what to do with the case before it. The determination of the case is within its exclusive jurisdiction and competence. A motion to dismiss the case filed by the fiscal should be addressed to the Court who has the option to grant or deny the same. It does not matter if this is done before or after the arraignment of the accused or that the motion was filed after a reinvestigation or upon instructions of the Secretary of Justice who reviewed the records of the investigation. In such an instance, before a re-investigation of the case may be conducted by the public prosecutor, the permission or consent of the court must be secured. And, if after such re-investigation the prosecution finds a cogent basis to withdraw the information or otherwise cause the dismissal of the case, such proposed course of action may be taken but shall 25 likewise be addressed to the sound discretion of the court. It is not denied that in the present case, the court granted the motion of respondent prosecutor for the suspension of the proceedings until the

re-investigation thereof shall have been terminated. Thereafter, the prosecutor arrived at a finding that petitioners should have been charged with murder, frustrated murder, and illegal possession of firearms. This prompted him to file an ex parte motion to withdraw the original informations for homicide and frustrated homicide. Although the motion did not state the reasons for the withdrawal of the informations, nevertheless, the court in the exercise of its discretion granted the same, as a consequence of which a new set of informations was thereafter filed and raffled to another branch of the court. Petitioners now question the propriety of the procedure adopted by the prosecution, insisting that an amendment, not a new information, was required under the circumstances. It must here be emphasized that respondent prosecutor sought, and was subsequently granted, permission by the court to dismiss the original informations. It cannot therefore be validly claimed that the prosecutor exceeded his authority in withdrawing those informations because the same bore the imprimatur of the court. The issue is thus focused on whether or not under the given situation the court acted correctly in dismissing the original informations rather than ordering the amendment thereof. It has been observed that while the Rules of Court gives the accused the right to move for the quashal of the information, it is silent with respect to 26 the right of the prosecutor to ask for a dismissal or withdrawal thereof. A perusal of the 1985 Rules on Criminal Procedure will show that there are only two provisions concerning the dismissal of an information other than on motion of the accused, namely, Section 14 of Rule 110 and Section 11 of Rule 119. But then, it may be contended that these rules speak of a dismissal by the court when there is a mistake in charging the proper offense, but make no mention of a dismissal made upon application of the prosecution. That is not necessarily so. It is true that Section 11, Rule 119 is virtually a restatement of Section 14, Rule 110, providing as it does that: Sec. 11. When mistake has been made in charging the proper offense. When it becomes manifest at any time before judgment, that a mistake has been made in charging the proper offense, and the accused cannot be convicted of the offense charged, or of any other offense necessarily included therein, the accused shall not be discharged, if there appears to be good cause to detain him. In such case, the court shall commit the accused to answer for the proper offense and dismiss the original case upon the filing of the proper information. (Emphasis supplied.) Rule 119 is the rule specifically governing the trial stage where evidence is necessarily being presented, hence the trial court is now in a better position to conclude that manifestly the accused cannot be convicted of the offense charged or of one that it necessarily includes. It would primarily be the function of the court to motu proprioorder the dismissal of the case and direct the filing of the appropriate information. We do not discount the possibility of either the prosecution or the defense initiating such dismissal and substitution at that stage, although, from a realistic point of view, that would be a rare situation. This provision, therefore, is more directly and principally directed to the trial court to invest it with the requisite authority to direct by itself the dismissal and refiling of the informations therein contemplated. Rule 110, on the other hand, provides the procedural governance for the prosecution of offenses. Section 14 thereof, quoted infra, provides in its second paragraph the procedure and requisites for the substitution of a

defective information by the correct one. Although, just like Section 11 of Rule 119 the permissible stage for effecting that substitution is "at any time before judgment," unlike the latter situation it is sufficient that "it appears . . . that a mistake has been made in charging the proper offense, . . . ." The situation under said Section 14 contemplates a longer time span, inclusive of the period from the filing of the information up to and before trial. Since no evidence has been presented at that stage, the error would appear or be discoverable from a review of the records of the preliminary investigation. Of course, that fact may be perceived by the trial judge himself but, again, realistically it will be the prosecutor who can initially determine the same. That is why such error need not be manifest or evident, nor is it required that such nuances as offenses includible in the offense charged be taken into account. It necessarily follows, therefore, that the prosecutor can and should institute remedial measures for the dismissal of the original information and the refiling of the correct one, otherwise he would be recreant to his duties. It is interesting to note that in the American jurisdiction, such right is specifically recognized under Rule 48 (a) of the Federal Rules of Criminal Procedure which provides that the entry of a nolle prosequi by the Government is a permissible right, although requiring in all cases the 27 approval of the court in the exercise of its judicial discretion. As a matter of fact, the prosecuting attorney is given the broad power, sole authority and discretion to enter anolle prosequi provided he does not act 28 arbitrarily and subject to the discretion of the court. In several cases, we have also impliedly recognized the propriety of such a procedure particularly in those instances where the prosecution is allowed to dismiss or withdraw an information on the ground of insufficiency of evidence. We have even gone further by imposing upon the fiscal, as he was then called, the duty to move for the dismissal of the information if he is convinced that the evidence is insufficient to establish, 29 at least prima facie, the guilt of the accused. In this case now before us, what is involved is a dismissal effected at the instance of the prosecutor by reason of a mistake in charging the proper offense, in order that new informations can be filed. The problem that may be posited, and should now be resolved, is when the fiscal may be allowed to move to dismiss an information and when he should merely move to amend it. Section 14 of Rule 110, which is invoked by petitioners, reads as follows: Sec. 14. Amendment. The information or complaint may be amended, in substance or form, without leave of court, at any time before the accused pleads; and thereafter and during the trial as to all matters of form, by leave and at the discretion of the court, when the same can be done without prejudice to the rights of the accused. If it appears at any time before judgment that a mistake has been made in charging the proper offense, the court shall dismiss the original complaint or information upon the filing of a new one charging the proper offense in accordance with Rule 119, Section 11, provided the accused would not be placed thereby in double jeopardy, and may also require the witnesses to give bail for their appearance at the trial. The first paragraph provides the rule for amendment of the information or complaint, while the second paragraph refers to the substitution of the information or complaint. Under the second paragraph, the court can order the filing of another information to charge the proper offense, provided the accused would not be placed thereby in double jeopardy and that could

only be true if the offense proved does not necessarily include or is not necessarily included in the offense charged in the original information. It has been the rule that under the first paragraph of Section 14, Rule 110, the amendment of the information may also be made even if it may result in altering the nature of the charge so long as it can be done without prejudice to the rights of the accused. Hence, in the case of Dimalibot vs. 30 Salcedo, the accused therein were originally charged with homicide and were released on bail. However, the then provincial fiscal, after a review of the affidavits of the witnesses for the prosecution, discovered that the killing complained of was perpetrated with the qualifying circumstances of treachery, taking advantage of superior strength, and employing means to weaken the defense of the victim. Consequently, an amended information for murder was filed against the accused who were ordered re-arrested without the amount of bail being fixed, the new charge being a capital offense. The Court ruled therein that the amendment was proper, pursuant to Section 13, Rule 106 of the 1940 Rules of Court (now Section 14, Rule 110 of the 1985 Rules on Criminal Procedure), thus: Here these rules properly apply, since it is undisputed that the herein accused were not yet arraigned before the competent court when the complaint for homicide was amended so as to charge the crime of murder. Upon the authority of said rules, the amendment could therefore be made even as to substance in order that the proper charge may be made. The claim that such amendment can only refer to matters of specification affecting the elements constituting the crime is not correct, for there is nothing in the rule to show that the nature of the amendment should only be limited to matters of specification. The change may also be made even if it may result in altering the nature of the charge so long as it can be done without prejudice to the rights of the defendant. Be that as it may, it is quite plausible under Section 14 of Rule 110 that, instead of an amendment, an information for homicide may also be dismissed before the accused pleads, to give way to the filing of a new information for murder. This may be deduced from the pronouncement of the Court in the aforecited case of Dimalibot, to wit: This clearly appears from the second part of Section 13 of Rule 106 which says that, if it appears before judgment that a mistake has been made in charging the proper offense, the court may dismiss the original information and order the filing of a new one provided the defendant may not be placed in double jeopardy. If a new information may be ordered at any time before judgment no reason is seen why the court may not order the amendment of the information if its purpose is to make it conformable to the true nature of the crime committed. . . . 31 In the subsequent case of Teehankee, Jr. vs. Madayag, et al., however, Section 14 of Rule 110 was clarified to mean as follows: It may accordingly be posited that both amendment and substitution of the information may be made before or after the defendant pleads, but they differ in the following respects: 1. Amendment may involve either formal or substantial changes, while substitution necessarily

involves a substantial change from the original charge; 2. Amendment before plea has been entered can be effected without leave of court, but substitution of information must be with leave of court as the original information has to be dismissed; 3. Where the amendment is only as to form, there is no need for another preliminary investigation and the retaking of the plea of the accused; in substitution of information, another preliminary investigation is entailed and the accused has to plead anew to the new information; an 4. An amended information refers to the same offense charged in the original information or to an offense which necessarily includes or is necessarily included in the original charge, hence substantial amendments to the information after the plea has been taken cannot be made over the objection of the accused, for if the original information would be withdrawn, the accused could invoke double jeopardy. On the other hand, substitution requires or presupposes that the new information involves a different offense which does not include or is not necessarily included in the original charge, hence the accused cannot claim double jeopardy. In determining, therefore, whether there should be an amendment under the first paragraph of Section 14, Rule 110, or a substitution of information under the second paragraph thereof, the rule is that where the second information involves the same offense, or an offense which necessarily includes or is necessarily included in the first information, an amendment of the information is sufficient; otherwise, where the new information charges an offense which is distinct and different from that initially charged, a substitution is in order. In any event, we are inclined to uphold the propriety of the withdrawal of the original informations, there having been no grave abuse of discretion on the part of the court in granting the motion and, more importantly, in consideration of the fact that the motion to withdraw was filed and granted before herein petitioners were arraigned, hence before they were placed in jeopardy. Thus, even if a substitution was made at such stage, petitioners cannot validly claim double jeopardy, which is precisely the evil sought to be prevented under the rule on substitution, for the simple reason that no first jeopardy had as yet attached. Consequently, we hold that although the offenses charged under the three new informations necessarily include those charged under the original informations, the substitution of informations was not a fatal error. A contrary ruling, to paraphrase from our former pronouncements, would sacrifice substantial justice for formal nuances on the altar of procedural technicalities. Furthermore, petitioner's right to speedy trial was never violated since the new informations were filed immediately after the motion to withdraw the original informations was granted. 2. The controversy over the jurisdiction of Judge Pornillos to entertain and act upon the new informations for murder, frustrated murder and illegal possession of firearms, is grounded on three points of disagreement. Firstly, it is argued that the new informations were prematurely filed considering that the order granting the withdrawal of the original

informations had not yet become final and executory and that, as a matter of fact, the same was subsequently reconsidered and the case reinstated by Judge Villajuan. Therefore, so petitioners postulate, Judge Pornillos could not acquire jurisdiction over the same offense involving the same incident and the same accused. Secondly, petitioners contend that the dismissal of the original informations and the filing of new ones which were raffled to another branch of the court constituted forum shopping, and was tainted with malice considering the indecent haste with which the motion to withdraw the informations was filed, the order granting the same was issued, and the new informations were filed, all of which took place on the same day. Pursuant to the doctrinal ruling that the court first acquiring jurisdiction excludes the other courts, it is theorized that the cognizance of the case taken by Judge Villajuan barred Judge Pornillos from assuming jurisdiction thereover. Finally, the designation of respondent Prosecutor Dennis Villa-Ignacio (who was then First Assistant Provincial Prosecutor of Pasig, Rizal) as Acting Provincial Prosecutor of Bulacan was arbitrary and without any justifiable reason. It follows, therefore, so petitioners vigorously argue, that in the absence of such authority, the informations should be considered null and void by reason of which Judge Pornillos did not acquire jurisdiction over the same. On the other hand, respondents question the propriety of petitioners' filing of a petition for certiorari prohibition and mandamus in the Court of Appeals against the order of the lower court denying petitioners' motion to quash, claiming that the proper remedy was to proceed to trial on the merits and thereafter raise on appeal, as special defenses, the grounds invoked in the motion to quash. It is a general rule that a nolle prosequi or dismissal entered before the accused is placed on trial and before he is called on to plead is not equivalent 32 to an acquittal, and does not bar a subsequent prosecution for the same 33 34 offense. It is not a final disposition of the case. Rather, it partakes of the nature of a nonsuit or discontinuance in a civil suit and leaves the matter in the same condition in which it was before the commencement of 35 the prosecution. A dismissal is different from an acquittal. An order of dismissal which is actually an acquittal is immediately final and cannot be 36 reconsidered. Furthermore, an acquittal is always based on the merits, that is, the defendant is acquitted because the evidence does not show that defendant's guilt is beyond reasonable doubt; but a dismissal does not decide the case on the merits or that the defendant is not guilty. Dismissals terminate the proceedings, either because the court is not a court of competent jurisdiction, or the evidence does not show that the offense was committed within the territorial jurisdiction of the court, or the complaint or information is not valid or sufficient in form and 37 substance. For dismissal to be a bar under double jeopardy, it must have the effect of acquittal. All these go to show, therefore, that the dismissal of Criminal Cases Nos. 3642-M-93 to 3644-M-93 did not amount to an acquittal of herein petitioners. Consequently, the same did not immediately become final, hence petitioners could still file a motion for the reconsideration thereof. Moreover, such dismissal does not constitute a proper basis for a claim of 38 double jeopardy. Since jeopardy had not yet attached, herein petitioners were not prejudiced by the filing of the new informations even though the order of dismissal in the prior case had not yet become final. Neither did it affect the jurisdiction of the court in the subsequent case.

In American legal practice, where a motion for an order of nolle prosequi is made, the only power to deny the motion would be based on failure of the 39 district attorney to judiciously exercise his discretion. In most cases, the motion will be readily granted and should not be refused unless the court has some knowledge that it is based on an improper reason or a corrupt motive. But such a motion to dismiss will not also be approved unless the court is satisfied that the administration of justice requires that the prosecution be ended, or if there appears to be a clear violation of the 40 law. Whatever may be the reason therefor, a denial of the motion to withdraw should not be construed as a denigration of the authority of the special prosecutor to control and direct the prosecution of the 41 case, since the disposition of the case already rests in the sound discretion of the court. This brings us to the question as to whether or not an order of dismissal may be subsequently set aside and the information reinstated. Again, in American jurisprudence, the authorities differ somewhat as to whether 42 a nolle prosequi may be set aside and the cause reinstated. Some cases hold that the nolle prosequi may be recalled and that the accused 43 may be tried on the same information, but before it can be retraced, set aside, cancelled, or struck off, the permission or assent of the court must be had and obtained, and such cancellation or retraction must be duly entered. According to other authorities, however, the entry of an unconditional nolle prosequi, not on the ground that the information is insufficient on its face, is an end to the prosecution of that information, and suchnolle prosequi cannot afterward be vacated and further proceedings 44 had in that case. Still in some cases, it has been held that a nolle prosequi may be set aside by leave of court, so as to reinstate proceedings on the information, 45 or unless it was entered by mistake. In our jurisdiction, we follow the rule which allows an order of dismissal to be set aside by leave of court. In one case, it was held that in the absence of any statutory provision to the contrary, the court may, in the interest of justice, dismiss a criminal case provisionally, that is, without prejudice to reinstating it before the order becomes final or to the subsequent filing of a new information for the 46 offense. The rule that in cases of concurrent jurisdiction the court first acquiring jurisdiction will retain it to the end to the exclusion of other tribunals, is not to be given unyielding effect in all cases and it does not apply where the jurisdiction of the first court has come to an end in any legal way, such as 47 by nolle prosequi. The rule on exclusions is intended to prevent confusion and conflicts in jurisdiction and to prevent a person from being twice tried for the same offense, but no accused has a vested right to be tried in any particular court of concurrent jurisdiction; and when one court of concurrent jurisdiction voluntarily relinquishes it by a nolle prosequi or dismissal of the case, there can be no legal or logical reason for 48 preventing the other court from proceeding. With much more reason will this rule apply where only branches of the same court, and not different courts, are involved in the jurisdictional conflict. There was no forum shopping in the lower court with respect to the case involved. While the procedure adopted by the prosecution was somewhat cumbersome, it was not in bad faith and, accordingly, it did not affect the legality of the proceedings. There is no showing, and petitioners failed to prove otherwise, that the assignment by raffle of the new informations to another branch of the same court was intended to prejudice herein petitioners, or to place them under less favorable circumstances, or to find a court which would act favorably on the prosecution's case. The authority of the special prosecutor appointed by the Secretary of Justice to sign and file informations has long been recognized in this

jurisdiction and it has been held that such information cannot be quashed on that account. There is nothing so sacrosanct in the signing of complaints, holding of investigations, and conducting prosecutions that only an officer appointed by the President or one expressly empowered by 49 law be permitted to assume these functions. And any irregularity in the appointment does not necessarily invalidate the same if he may be 50 considered a de facto officer. Of course, where the person who signed the information was disqualified from appointment to such position, the information is invalid and the court 51 does not acquire jurisdiction to try the accused thereon. Such is not, however, the situation obtaining in the case at bar. It will be noted that respondent prosecutor was designated by the Secretary of Justice to handle the re-investigation and prosecution of the case against petitioners pursuant to Department Order No. 369. Petitioners failed to show any irregularity in the issuance of said directive. At any rate, the power of supervision and control vested in the Secretary of Justice under Presidential Decree No. 1275 had been broadened beyond the confines of the old law, that is, Section 1679 of the Revised Administrative Code, wherein the power of the Secretary was then limited only to certain instances. Pertinently, in Aguinaldo, et al. vs. Domagas, et 52 al., we said: The Court notes, however; that Department of Justice Order No. 85 was issued pursuant to, among others, P.D. No. 1275 issued on 11 April 1978 which provides: Sec. 1. Creation of the National Prosecution Service; Supervision and Control of the Secretary of Justice. There is hereby created and established a National Prosecution Service under the supervision and control of the Secretary of Justice, to be composed of the Prosecution Staff in the Office of the Secretary of Justice and such number of Regional State Prosecution Offices, and Provincial and City Fiscal's Offices as are hereinafter provided, which shall be primarily responsible for the investigation and prosecution of all cases involving violations of penal laws. The power of supervision and control vested in the Secretary of Justice includes the authority to act directly on any matter within the jurisdiction of the Prosecution Staff, the Regional State Prosecution Office or the Office of the Provincial or City Fiscal and to review, modify or revoke any decision or action of the Chief of said staff or office. The power of supervision and control vested in the Secretary of Justice under P.D. No. 1275 had thus been broadened beyond the confines of the old law, i.e., Section 1679 of the Revised Administrative Code

of 1917, where the power of the Secretary of Justice to designate acting fiscals or prosecutors to handle a particular case was limited to instances "when a provincial fiscal shall be disqualified by personal interest to act in a particular case or when for any reason he shall be unable, or shall fail to discharge any of the duties of his position." Indeed, the limitation upon which petitioners rely no longer subsisted under P.D. No. 1275. Having been duly designated in accordance with law, the panel of prosecutors had complete control of the investigation and prosecution of the case. . . . 3. Petitioners similarly dispute the legality of their arraignment on January 24, 1994, when Judge Pornillos entered a plea of not guilty for them after they refused to plead, without furnishing them copies of the information with the list of witnesses, after merely reading the informations against them and asking whether they understood the same, which were allegedly in palpable violation of Section 1, Rule 116. Petitioners aver that they were requesting for the suspension of the arraignment as they wanted to have a final copy of the order of January 24, 1994 which was merely read in open court, and to take the necessary steps to question the same by way of a motion for reconsideration or an appeal. In criminal cases, it is the duty of the accused, in addition to the other pleas authorized by law, to plead whether he is guilty or not of the crime charged. In that way and in that way only can an issue be created upon 53 which the trial shall proceed. Section 1 (c) of Rule 116 is quite explicit that where the accused refuses to plead, a plea of not guilty shall be entered for him. Hence, under such mandatory language, if the accused refuses to plead, the court must enter a plea of not guilty. The words are so plain and unambiguous that no construction is necessary. It actually calls for a literal application thereof. Any explanation or defense which petitioners would want to invoke can be properly raised during the trial, but they cannot refuse to enter their plea. Nonetheless, the alleged defect in their arraignment on January 24, 1994 is deemed to have been cured when they were again arraigned on February 18, 1994 with the assistance of counsel de oficio, and the information was read to them in the vernacular. In conclusion, considering that Branch 10 of the same trial court handling Criminal Cases Nos. 4004-M-93 to 4007-M-93 legally acquired jurisdiction over the new informations which we have likewise declared valid, petitioners may be prosecuted thereunder. II. On the Petition for Habeas corpus This petition is predicated mainly on petitioners' asseveration that the court which issued the warrant for their arrest had no jurisdiction over the case, hence their detention should be deemed illegal. We have earlier declared that Branch 10 of the trial court acquired jurisdiction over the new set of informations. Consequently, the warrant of arrest issued on the bases of said informations filed therein and the subsequent detention of herein petitioners pursuant thereto are valid. What instead has to be resolved is the corollary issue of whether the petition for habeas corpus was properly filed together with their present petition for certiorari andmandamus. The writs of habeas corpus and certiorari may be ancillary to each other where necessary to give effect to the supervisory powers of the higher courts. A writ of habeas corpus reaches the body and the jurisdictional matters, but not the record. A writ of certiorari reaches the record but not the body. Hence, a writ of habeas corpus may be used with the writ 54 of certiorari for the purpose of review. However, habeas corpus does not

lie where the petitioner has the remedy of appeal or certiorari because it will not be permitted to perform the functions of a writ of error or appeal for the purpose of reviewing mere errors or irregularities in the proceedings of 55 a court having jurisdiction over the person and the subject matter. Neither can we grant the writ at this stage since a writ of habeas corpus is not intended as a substitute for the functions of the trial court. In the absence of exceptional circumstances, the orderly course of trial should be pursued and the usual remedies exhausted before the writ may be invoked. Habeas corpus is not ordinarily available in advance of trial to 56 determine jurisdictional questions that may arise. It has to be an exceptional case for the writ of habeas corpus to be available to an 57 accused before trial. In the absence of special circumstances requiring immediate action, a court will not grant the writ and discharge the prisoner 58 in advance of a determination of his case in court. In the case under consideration, petitioners have dismally failed to adduce any justification or exceptional circumstance which would warrant the grant of the writ, hence their petition therefor has to be denied. In addition, a petition for habeas corpus is not the appropriate vehicle for asserting a right to bail or vindicating its denial. In the case of Enrile vs. 59 Salazar, etc., et al., we held that: The criminal case before the respondent Judge was the normal venue for invoking the petitioner's right to have provisional liberty pending trial and judgment. The original jurisdiction to grant or deny bail rested with said respondent. The correct course was for petitioner to invoke that jurisdiction by filing a petition to be admitted to bail, claiming a right to bail per se by reason of the weakness of the evidence against him. Only after that remedy was denied by the trial court should the review jurisdiction of this Court have been invoked, and even then, not without first applying to the Court of Appeals if appropriate relief was also available there. III. On the Motion to Cite for Contempt The records show that on February 24, 1994, this Court issued a temporary restraining order, pursuant to its resolution in Administrative Matter No. 94-1-13-RTC which is a petition for change of venue filed by the Vinculados, requiring Judges Felipe N. Villajuan and Victoria VillalonPornillos to cease and desist from hearing the criminal cases involving 60 herein petitioners which were pending before them. Subsequently, another resolution was issued in said cases, dated March 1, 1994, with the following directive: ACCORDINGLY, without prejudice to the final determination as to which of the two (2) sets of information will be upheld or prevail, the Executive Judge of the Regional Trial Court of Malolos, Bulacan is hereby directed to transfer all the aforementioned criminal cases filed against Mayor Honorato Galvez, et al. now in the Regional Trial Court of Malolos, Bulacan, to the Executive Judge, Regional Trial Court of Quezon City for raffle as one (1) single case among its branches and for the branch concerned, after raffle, to proceed with all deliberate dispatch after the issues raised in CA-G.R. SP No. 33261 have been 61 resolved with finality. As a consequence, the seven informations which were docketed as Criminal Cases Nos. Q-94-55481 to Q-94-55487 were assigned to and are now pending trial on the merits before Branch 103 of the Regional Trial

Court of Quezon City, presided over by Judge Jaime N. Salazar, Jr. Petitioners now assert that Judge Salazar and Prosecutor Villa-Ignacio proceeded with the trial of the cases despite the aforestated directives in the above cited resolutions. We find no merit in the motion to cite them for contempt. The records reveal that there was a manifestation dated May 31, 62 1994 filed by the Solicitor General wherein the latter manifested his conformity to the agreement made between the prosecution and the defense before Judge Salazar, the pertinent part of which agreement is as follows: 1. During the hearing on May 26, 1994, the prosecution, through Senior State Prosecutor Dennis Villa-Ignacio, the defense through Justice Alfredo Lazaro, and this Honorable Court agreed that the trial in these cases shall proceed on condition that: (a) the defense shall not be deemed to have waived any issue or objection it has raised before the Supreme Court in G.R. No. 114046; and (b) that the trial shall also be without prejudice to whatever decision and resolution the Supreme Court may render in the case before it. Counsel for petitioners, retired Justice Alfredo Lazaro, takes issue with said agreement on the pretension that the same is not the true agreement of the parties, but he failed to state what they actually agreed upon. Withal, the resolutions of this Court in the petition for change of venue, as well as the cease and desist order issued therein, are clearly directed against the two aforenamed regional trial judges in Malolos, Bulacan. By no stretch of the imagination can we interpret the same to include Judge Jaime N. Salazar, Jr. of Quezon City. For that matter, the issues involved in this petition for certiorari do not necessarily require a suspension of the proceedings before the present trial court considering that the main petition hinges only on a determination of which set of informations shall constitute the indictments against petitioners and for which charges they shall stand trial. Whichever set of informations prevails, the evidence of the prosecution and defense will more or less be the same and can be utilized for the charges therein. Hence, no cogent reason exists for the suspension of the proceedings before the court below. As a final word, while it may well be that both sets of information validly exist for the nonce, to allow both of them to subsist will only serve to confuse and complicate the proceedings in the cases therein. Brushing aside procedural technicalities, therefore, it becomes exigent to now consider and declare the four informations for murder, frustrated murder and illegal possession of firearms as having amended and superseded the original three informations for homicide and frustrated homicide, there being no substantial rights of herein petitioners which may be affected thereby. Correspondingly, the three informations for homicide and frustrated homicide should be ordered withdrawn from the Quezon City trial court's docket. WHEREFORE, judgment is hereby rendered DISMISSING the petition for certiorari and mandamus together with the petition for habeas corpus; DENYING, for lack of merit, the motion to cite respondent judge and prosecutor for contempt and to annul proceedings; and ORDERING the withdrawal and invalidation of the three informations for homicide and frustrated homicide against petitioners from the docket of Branch 103 of the Regional Trial Court of Quezon City. SO ORDERED. G.R. No. 78911-25 December 11, 1987

CHARMINA B. BANAL, petitioner, vs. THE HON. TOMAS V. TADEO, JR., Presiding Judge, RTC-Quezon City, Branch 105 and Rosario Claudiarespondents. GUTIERREZ, JR., J.: This is a petition for certiorari to review and set aside the orders of the respondent Regional Trial Court, Branch 105, Quezon City dated (1) 8 January 1987 which rejected the appearance of Atty. Nicolito L. Bustos as private prosecutor in Criminal Cases Nos. Q-40909 to Q-40913 where respondent Rosario Claudio is the accused for violation of Batas Pambansa Blg. 22; and (2) 31 March 1987 which denied the petitioner's motion for reconsideration of the order dated 8 January 1987; and for mandamus to allow Atty. Bustos to enter his appearance as private prosecutor in the aforestated criminal cases. It appears that fifteen (15) separate informations for violation of Batas Pambansa Blg. 22 or the Bouncing Checks Law, docketed as Criminal Cases Nos. 40909-40913, were filed against respondent Claudio before the Regional Trial Court of Quezon City and originally assigned to Branch 84. The presiding judge of Branch 84 inhibited himself when respondent Claudio, through counsel, filed a petition for recuse dated May 19,1986. The cases were re-raffled and consequently assigned on June 25, 1986 to Branch 105 which was then presided over by Judge Johnico G. Serquina During these proceedings, respondent Claudio was finally arraigned on November 20, 1986 where she pleaded not guilty to the charges. Pre-trial was then set on January 8, 1987. In the meantime Judge Tomas V. Tadeo, Jr. replaced Judge Serquina as presiding judge of Branch 105. On January 8, 1987, the respondent court issued an order rejecting the appearance of Atty. Nicolito L. Bustos as private prosecutor on the ground that the charge is for the violation of Batas Pambansa Blg. 22 which does not provide for any civil liability or indemnity and hence, "it is not a crime against property but public order." The petitioner, through counsel filed a motion for reconsideration of the order dated 8 January 1987 on March 10, 1987. Respondent Claudio filed her opposition to the motion for reconsideration on March 25, 1987. In an order dated 31 March 1987, the respondent court denied petitioner's motion for reconsideration. Hence, this petition questioning the orders of the respondent Court. The issue to be resolved is whether or not the respondent Court acted with grave abuse of discretion or in excess of its jurisdiction in rejecting the appearance of a private prosecutor. The respondents make capital of the fact that Batas Pambansa Blg. 22 punishes the act of knowingly issuing worthless checks as an offense against public order. As such, it is argued that it is the State and the public that are the principal complainants and, therefore, no civil indemnity is provided for by Batas Pambansa Blg. 22 for which a private party or prosecutor may intervene. On the other hand, the petitioner, relying on the legal axiom that "Every man criminally liable is also civilly liable," contends that indemnity may be recovered from the offender regardless of whether or not Batas Pambansa Blg. 22 so provides. A careful study of the concept of civil liability allows a solution to the issue in the case at bar. Generally, the basis of civil liability arising from crime is the fundamental postulate of our law that "Every man criminally liable is also civilly liable"

(Art. 100, The Revised Penal Code). Underlying this legal principle is the traditional theory that when a person commits a crime he offends two entities namely ( 1) the society in which he lives in or the political entity called the State whose law he had violated; and (2) the individual member of that society whose person, right, honor, chastity or property was actually or directly injured or damaged by the same punishable act or omission. However, this rather broad and general provision is among the most complex and controversial topics in criminal procedure. It can be misleading in its implications especially where the same act or omission may be treated as a crime in one instance and as a tort in another or where the law allows a separate civil action to proceed independently of the course of the criminal prosecution with which it is intimately intertwined. Many legal scholars treat as a misconception or fallacy the generally accepted notion that, the civil liability actually arises from the crime when, in the ultimate analysis, it does not. While an act or omission is felonious because it is punishable by law, it gives rise to civil liability not so much because it is a crime but because it caused damage to another. Viewing things pragmatically, we can readily see that what gives rise to the civil liability is really the obligation and the moral duty of everyone to repair or make whole the damage caused to another by reason of his own act or omission, done intentionally or negligently, whether or not the same be punishable by law. In other words, criminal liability will give rise to civil liability only if the same felonious act or omission results in damage or injury to another and is the direct and proximate cause thereof. Damage or injury to another is evidently the foundation of the civil action. Such is not the case in criminal actions for, to be criminally liable, it is enough that the act or omission complained of is punishable, regardless of whether or not it also causes material damage to another. (See Sangco, Philippine Law on Torts and Damages, 1978, Revised Edition, pp. 246-247). Article 20 of the New Civil Code provides: Every person who, contrary to law, wilfully or negligently causes damage to another, shall indemnify the latter for the same. Regardless, therefore, of whether or not a special law so provides, indemnification of the offended party may be had on account of the damage, loss or injury directly suffered as a consequence of the wrongful act of another. The indemnity which a person is sentenced to pay forms an integral part of the penalty imposed by law for the commission of a crime (Quemel v. Court of Appeals, 22 SCRA 44, citing Bagtas v. Director of Prisons, 84 Phil. 692). Every crime gives rise to a penal or criminal action for the punishment of the guilty party, and also to civil action for the restitution of the thing, repair of the damage, and indemnification for the losses. (United States v. Bernardo, 19 Phil. 265). Indeed one cannot disregard the private party in the case at bar who suffered the offenses committed against her. Not only the State but the petitioner too is entitled to relief as a member of the public which the law seeks to protect. She was assured that the checks were good when she parted with money, property or services. She suffered with the State when the checks bounced. In Lozano v. Hon. Martinez (G.R. No. 63419, December 18, 1986) and the cases consolidated therewith, we held that "The effects of a worthless check transcend the private interests of the parties directly involved in the transaction and touch the interests of the community at large." Yet, we too recognized the wrong done to the private party defrauded when we stated therein that "The mischief it creates is not only a wrong to the payee or the holder, but also an injury to the public." Civil liability to the offended private party cannot thus be denied, The payee of the check is entitled to receive the payment of money for which

the worthless check was issued. Having been caused the damage, she is entitled to recompense. Surely, it could not have been the intendment of the framers of Batas Pambansa Big. 22 to leave the offended private party defrauded and empty- handed by excluding the civil liability of the offender, giving her only the remedy, which in many cases results in a Pyrrhic victory, of having to file a separate civil suit. To do so, may leave the offended party unable to recover even the face value of the check due her, thereby unjustly enriching the errant drawer at the expense of the payee. The protection which the law seeks to provide would, therefore, be brought to naught. The petitioner's intervention in the prosecution of Criminal Cases 40909 to 40913 is justified not only for the protection of her interests but also in the interest of the speedy and inexpensive administration of justice mandated by the Constitution (Section 16, Article III, Bill of Rights, Constitution of 1987). A separate civil action for the purpose would only prove to be costly, burdensome, and time-consuming for both parties and further delay the final disposition of the case. This multiplicity of suits must be avoided. Where petitioner's rights may be fulIy adjudicated in the proceedings before the trial court, resort t o a separate action to recover civil liability is clearly unwarranted. WHEREFORE the petition is hereby GRANTED. The respondent court is ordered to permit the intervention of a private prosecutor in behalf of petitioner Charmina B. Banal, in the prosecution of the civil aspect of Criminasl Cases Nos. 40909 to 40913. The temporary restraining order issued by this court a quo for further proceedings. This decision is immediately executory. SO ORDERED. G.R. No. 123263 December 16, 1996 PEOPLE OF THE PHILIPPINES, petitioner, vs. METROPOLITAN TRIAL COURT OF QUEZON CITY, Branch 32, and ISAH V. RED, respondents. NARVASA, C.J.:p Whether it is the Regional Trial Court, or the Metropolitan Trial Court or other first level court which has exclusive original jurisdiction over criminal actions of libel, is the issue raised by the People of the Philippines, as petitioner in the special civil action of certiorari, prohibition and mandamus at bar. The fairly simple facts from which the issue has arisen are hereunder briefly narrated. On January 30, 1995 an information for libel was filed against Isah V. Red in the Regional Trial Court of Quezon City. The case thereby initiated was docketed as Criminal Case No. 95-60134 and raffled to Branch 82. Red filed a motion to quash the information on the ground that the RTC had no jurisdiction of the offense. The Judge found merit in the motion and by an Order dated March 29, 1995, remanded the case to the Metropolitan Trial Court of Quezon City "for proper action/disposition in the premises." His Honor declared that "(u)nder Section 2 of R.A. No. 7691, which took effect on April 15, 1994, exclusive original jurisdiction over 'all offenses punishable with imprisonment not exceeding six (6) years, irrespective of the amount of fine, and regardless of other imposable accessory or other penalties, including the civil liability arising from such offenses or predicated thereon, irrespective of kind, nature, value or amount thereof is vested in the Municipal Trial Court. . . " The case was accordingly transferred to the Quezon City Metropolitan Trial Court where it was docketed as Case No. 43-00548 and raffled to Branch 43.

Thereafter, the private prosecutor, "under the control and supervision of the Fiscal," filed a "Manifestation and Motion to Remand" dated August 1, 1995 praying that the case be returned to the RTC. The movant invoked Article 360 of the Revised Penal Code, as amended, which pertinently 1 provides that: xxx xxx xxx The criminal action and civil action for damages in case of written defamation, as provided for in this chapter, shall be filed simultaneously or separately with the Court of First Instance of the province or city where the libelous article is printed and first published or where any of the offended parties actually resides at the time of the commission of the offense . . .", and argued that . . . Laws vesting jurisdiction exclusively with a particular court (such as the Court of Tax Appeals) are special in character, and should prevail over the Judiciary Act defining the jurisdiction of other courts (such as the Court of First Instance) which is a general law. (De Joya vs. Lantin, 19 SCRA 893). Moreover, a general law cannot repeal or amend by implication a specific provision or a special law. Otherwise stated: a subsequent statute, general in character as to its terms and operation, is not to be construed as repealing a special or specific enactment, unless the legislative purpose to do so is manifested. This is so, even if the provisions of the latter are sufficiently comprehensive to include what was set forth in the special act. (Philippine Railway Co. vs. CIR, 91 Phil. 35; Villegas vs. Subido, 41 SCRA 190; Commissioner of Internal Revenue vs. CA, 207 SCRA 487). The MetroTC denied the motion by Order dated August 14, 1995. It opined that "Rep. Act No. 7691, which took effect on April 15, 1994, would partake of the nature of a 'modern' law which impliedly repeals an 'ancient' law (the Revised Penal Code) which is of 1932 vintage, which is inconsistent with the later law . .; (and that) if the repeal makes the 2 penalty lighter in the new law, the new law shall be applied." Later, the MetroTC also denied the private prosecutor's motion for reconsideration, by Order dated September 7, 1995. Still later, in an Order dated October 18, 1995, it denied another motion by the same counsel reiterating the plea to remand the case back to the RTC, and further directed "the prosecution to present . . (its) next witness," trial having in the meantime commenced. Now, in this proceeding, the State prays for judgment: "(1) declaring the questioned Orders dated August 14, 1995, September 7, 1995, and October 18, 1995 as null and void for having been issued by the respondent court acting without jurisdiction; (2) enjoining the respondent court from further conducting trials in Criminal Case No. 43-00548; and (3) commanding the respondent court to remand Criminal Case No. 43-00548 to the Executive Judge of the Regional Trial Court of Quezon City for proper disposition." It cites Jalandoni v. Endaya (55 SCRA 261 [1974]), where this Court (a) drew attention to the categorical language of Article 360 of the Revised Penal Code to the effect that "it is a court of first instance that is specifically designated to try a libel case," and (b) indicated "thirteen (13) cases, from People v. Topacio, 59 Phil. 356 (1934) to Time, Inc. v. Reyes, 39 SCRA 303 (1971), wherein this . . Court ruled 3 that municipal courts do not have jurisdiction over libel cases." It further

argues that in light of Jalandoni, and Berces v. Guingona (241 SCRA 539 [1995]) to the effect that a subsequent statute, general in character as to its terms and application, is not to be construed as repealing a special or specific enactment unless the legislative purpose to do so is manifest or an irreconcilable inconsistency and repugnancy exists between them Article 360 of the Revised Penal Code may not be deemed to have been superseded by Republic Act No. 7691. This Court has already had occasion to resolve the issue, substantially in line with the position taken by the People, account having been taken of substantially the same arguments adduced by the opposing parties in this case. In G.R. No. 122126 entitled Lydia Caro vs. Court of Appeals and Violeta Sarigumba, involving the same jurisdictional issue as that specifically presented in the case at bar, this Court promulgated a Resolution on June 19, 1996 pertinently reading as follows: Anent the question of jurisdiction, we . . find no reversible error committed by public respondent Court of Appeals in denying petitioner's motion to dismiss for lack of jurisdiction. The contention . . that R.A. No. 7691 divested the Regional Trial Courts of jurisdiction to try libel cases cannot be sustained. While libel is punishable by imprisonment of six months and one day to four years and two months (Art. 360, Revised Penal Code) which imposable penalty is lodged within the Municipal Trial Courts' jurisdiction under R.A. No. 7691 (Sec. 32 [21]), said law, however, excludes therefrom ". . cases falling within the exclusive original jurisdiction of the Regional Trial Courts . . ." The Court in Bocobo vs.Estanislao, 72 SCRA 520 and Jalandoni vs. Endaya, 55 SCRA 261, correctly cited by the Court of Appeals, has laid down the rule that Regional Trial Courts have the exclusive jurisdiction over libel cases, hence, the expanded jurisdiction conferred by R.A. 7691 to inferior courts cannot be applied to libel cases. Moreover, Administrative Order No. 104-96 treating of the subject: ". . DESIGNATION OF SPECIAL COURTS FOR KIDNAPPING, ROBBERY, CARNAPPING, DANGEROUS DRUGS CASES AND OTHER HEINOUS CRIMES; INTELLECTUAL PROPERTY RIGHTS VIOLATIONS AND JURISDICTION IN LIBEL CASES" issued on October 21, 1996 by the Chief Justice upon the advice and consent of the Court En Banc, inter alia provides, in categorical acknowledgment of the validity of the doctrine just adverted to, that "LIBEL CASES SHALL BE TRIED BY THE REGIONAL TRIAL COURTS HAVING JURISDICTION OVER THEM TO THE EXCLUSION OF THE METROPOLITAN TRIAL COURTS, MUNICIPAL TRIAL COURTS IN CITIES, MUNICIPAL TRIAL COURTS AND MUNICIPAL CIRCUIT TRIAL COURTS." The proposition is hereby reaffirmed, the Court perceiving no argument advanced by respondents justifying its abrogation or modification. Concerning respondents' contention that the challenged orders are now immutable, having become final and executory for failure of the prosecution to take an appeal therefrom, it suffices to advert to the familiar and uniformly applied axiom that only final orders i.e., those that finally dispose of a case, leaving nothing more to be done by the court respecting the merits of a case can become final and executory in the sense of becoming unalterable through an appeal or review 4 proceeding. Interlocutory orders, on the other hand i.e., those which resolve incidental motions or collateral matters but do not put an end to the case never become final in the sense of becoming unchangeable

and impervious to impugnation after expiration of the period prescribed for 5 taking an appeal from a final judgment. Respecting respondents' claim that venue is merely procedural, suffice it to point out that unlike in civil cases, in criminal cases venue is 6 jurisdictional. WHEREFORE, the petition is granted; the respondent Court's Orders dated August 14, 1995, September 7, 1995, and October 18, 1995 are declared null and void for having been issued without jurisdiction; and said Court is enjoined from further taking cognizance of and proceeding with Criminal Case No. 43-00548, which it is commanded to remand to the Executive Judge of the Regional Trial Court of Quezon City for proper disposition. IT IS SO ORDERED.